The Review

March 2017 Issue

articles

The Autonomy Rationale for Religious Freedom

While personal autonomy is a frequent rationale for the right to religious freedom, it raises tensions between autonomy on the one hand, and religious belief, practice and proselytism on the other. Examining two resulting, underappreciated tensions – the resistance of some religious beliefs to revision and the manipulative nature of some modes of proselytism – this article contends that current protections of beliefs, practices and proselytism cannot be justified by the value of autonomy.

Farrah Ahmed

Law and Finance in Emerging Economies: Germany and Britain 1800–1913

Nineteenth century Britain's status as the world's leading financial nation is often attributed to its stringent disclosure regime. Yet a granular comparison of British and German regimes shows close similarities in disclosure regulations, with reforms responding to conditions – rather than stimulating financial development. Instead, the more striking difference is in the regulation of stock corporation formation, of importance for organisational choice and financing.

Carsten Gerner-Beuerle

legislation

The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014: A Litany of Fundamental Flaws?

The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 are fatally flawed notwithstanding the apparent rigour of the process of deliberation which produced them. They are too reliant on criminal law rhetoric, fail to take into account competing norms and NHS budget constraints, push the CQC towards a problematic, heavy-handed deterrence approach in enforcement, and will prevent much-needed transparency -- all fatal flaws more commonly seen in knee-jerk regulation.

Ruth Stirton

cases

Taking Abortion Rights Seriously: Whole Woman's Health v Hellerstedt

Whole Woman's Health is the most important US Supreme Court decision on abortion in just under a decade. The Court held that two provisions of a Texas law regulating abortion on the grounds of women's health failed the test for constitutional review by creating a 'substantial obstacle' for women seeking to exercise the fundamental right to abortion first established in Roe v Wade. The Court's reasoning signals a landmark development in constitutional review of abortion regulation for, among other reasons, clarifying that 'women's health' justifications for abortion regulation must have a credible factual basis.

Kate Greasley

MWB Business Exchange Centres Ltd: The Practical Benefit Doctrine Marches On

In MWB, the Court of Appeal held that varying an ongoing contract to reduce one party's obligation to pay money was binding providing the other party receives a practical benefit. This effectively confines the rule in Foakes v Beer to one-off payments, raising serious questions about its survival – though the Court may have ensured that survival via equity by clarifying a suggestion made in Collier v P & M J Wright (Holdings) Ltd.

Marcus Roberts

review article

Some Reflections on the Proof–Based Theory of Legal Exceptions

H. L. A. Hart first introduced the concept of defeasibility in 1949. Trying to characterise the role of exceptions in legal reasoning, Hart considered that the conditions for applying a legal concept 'although necessary are not always sufficient' for justifying a certain legal conclusion. Breaking through a recent impasse in contemporary debates, and more than 60 years after Hart's paper, Luís Duarte d'Almeida's Allowing for Exceptions attempts to develop a third theory. This review recounts the book's theoretical achievements and provides a critical analysis of several themes.

Alessio Sardo

book reviews

Review of Nigel D. White, The Cuban Embargo under International Law: El Bloqueo, Abingdon and New York: Routledge, 2015, 208 pp, hb £95.00, pb £34.99.

Professor White's The Cuban Embargo under International Law: El Bloqueo is a timely and thorough analysis of the US unilateral embargo on Cuba, its effects, and what it reveals about international law. Among many other achievements, White prompts us to re-think issues of self-help and self-defence in international law and how their invocation can often be ironically self-destructive.

Therese O'Donnell

Review of Neil Duxbury, Viscount Kilmuir: A Vignette, Oxford: Hart Publishing, 2015, 135 + ix, hb £25.00.

Anthony Sampson once wrote of David Maxwell Fyfe – who, on becoming Lord Chancellor in 1954, was styled Viscount Kilmuir – that he was amiable, but had a 'second-rate brain', and worked hard. In his Viscount Kilmuir: A Vignette, Neil Duxbury tells us that Maxwell Fyfe would have agreed with Sampson's assessment of his abilities and approach to his work. While this may make him seem 'humdrum', Maxwell Fyfe undoubtedly had historical significance, not least as one of the 'three main authors' of the European Convention on Human Rights. Ultimately, his life throws important lights on law as a politico-legal institution.

Richard Mullender

The Review

Published March 2017
Frequency Bi-Monthly
Volume 80
Issue 2
Print ISSN 0026-7961
Online ISSN 1468-2330

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