The Review

March 2018 Issue

articles

Regulating Complex Contracting: A Socio-legal Study of Decision-Making under EU and UK Law

The article evaluates interview data on decision-making under public procurement law using Halliday's analytical model on compliance with administrative law. Although public bodies are generally predisposed to comply, legal uncertainty means the relevance of commercial pressures and challenge risk impact heavily on approaches to compliance, even shaping understanding of what compliant behaviour actually is.

Eleanor Aspey and Richard Craven

We All Make Mistakes: A ‘Duty of Virtue’ Theory of Restitutionary Liability for Mistaken Payments

The liability to return the value of mistaken payments is an example of the law's enforcing a duty of virtue. Accordingly, one of Birks's most cherished theses – that the law of unjust enrichment represents a distinctive element of private law – can be made out: it is distinctive in having an entirely different normative source: in virtue, not in right. But this result comes at a cost.

J E Penner

From ‘Doctor Knows Best’ to Dignity: Placing Adults Who Lack Capacity at the Centre of Decisions about Their Medical Treatment

In 1989, the House of Lords first derived a ‘best interests’ test for the medical treatment of adults who lack capacity from the doctrine of necessity and, now codified, the test continues to apply today. This article considers the advantages and disadvantages of providing additional guidance to decision-makers, and advocates for formalising current best practice in the Court of Protection through the introduction of a series of rebuttable presumptions.

Emily Jackson

Of Values and Legitimacy – Discourse Analytical Insights on the Copyright Case Law of the Court of Justice of the European Union

The Court of Justice of the European Union (CJEU) increasingly faces societal value-conflicts in EU law disputes. This article discusses the role of the CJEU in the European value discourse, using copyright law as a case study, and suggests that the CJEU's discourse of the various values seems unnecessarily one-sided and shallow.

Harri Kalimo, Trisha Meyer, and Tuomas Mylly

legislation

Bill of Sale Lending: Reforming a ‘Toxic’ Form of Credit

The Bills of Sale Acts were enacted in Victorian times as a form of secured credit. In the twenty-first century these bills are most commonly used as ‘logbook loans’ for vehicles with extortionate interest rates and very little protection for individual consumers. This article examines background to the Acts, provides a critique of the registration process, and examines reform proposals before the Law Commission.

Gerald Swaby, Rebecca Kelly and Paul Richards

cases

book reviews

Review of Lars Vinx, The Guardian of the Constitution: Hans Kelsen and Carl Schmitt on the Limits of Constitutional Law, Cambridge: Cambridge University Press, 2015, ix + 296pp, hb £67.00

The debate between Hans Kelsen and Carl Schmitt in the context of the Weimar constitution chases the ‘big game’ of constitutional theory. Lars Vinx's collection and translation of their essays forming this debate contains an excellent introduction and notes, making the debate readily accessible to readers. In virtue of its style and composition, The Guardian of the Constitution will make interesting reading for these well-versed in Kelsen and Schmitt, and will serve as an apt entry-point for those new to the territory.

J G Allen

Review of Eric Barendt, Anonymous Speech: Literature, Law and Politics, Oxford: Hart, 2016, xvii + 176 pp, hb £35.99

Should rights of free expression include anonymous speech? In our age of post-truth and internet trolls, Eric Barendt’s brisk and engaging book raises timely questions. As new electronic media continue to confront legislatures and courts with difficult problems of anonymity, this thought-provoking book illuminates the diversity and complexity of issues that will require attention into the foreseeable future.

Eric Heinze and Tom Hannant

Review of Jorun Baumgartner, Treaty Shopping in International Investment Law, Oxford: Oxford University Press, 2016, 354 pp hb £80.00

Baumgartner's monograph is a comprehensive and detailed account of every aspect of international investment law as it relates to treaty shopping. As a legal reference, it sets a new benchmark, and will be an indispensable reference for practitioners. However, the book is less successful in providing an account of the policy issues at stake, or in mapping a path for reform.

Jonathan Bonnitcha

Review of Andrea Bianchi, International Law Theories: An Enquiry into Different Ways of Thinking, Oxford and New York: Oxford University Press, 2016, 320 pp, hb £75.00, pb £24.99

The book successfully makes international law theories – or better, ‘different ways of thinking about international law’ – accessible and relatable, without being patronising or reductionist. It should be read, in particular, by any scholar or student who finds theorising impenetrable, abstract, frustrating or intimidating, and perhaps thinks of themselves as resolutely ‘not doing theory’.

Hemi Mistry

The Review

Published March 2018
Frequency Bi-Monthly
Volume 81
Issue 2
Print ISSN 0026-7961
Online ISSN 1468-2230

Virtual Issues

Virtual Issues contain curated content drawn from the MLR

GO TO VIRTUAL ISSUES