The Review

May 2016 Issue


Tracing, Value and Transactions

Tracing is generally understood to be the process of following value through one or more substitutions, by which a claimant ‘transmits’ his claim from the right substituted into its exchange product. Understood thus, the exercise of tracing has been made increasingly difficult to conduct and predict by the development of complex payment mechanisms involving multiple payment instructions and interceding periods of indebtedness. This article argues that concepts of value are conceptually and practically misleading. Identifying and determining the content of transactions are normative processes that depend, not upon identifying the precise mechanisms by which a particular change in legal relations is sought and executed, but rather upon the manifested intentions of the transacting parties. This allows us to deal straightforwardly with complex payment structures, clearing and credit, and to focus instead upon the role of transactions in the justification for a resulting claim.

Tatiana Cutts

Towards a Transformative Conceptualisation of Violence Against Women - A Critical Frame Analysis of Council of Europe Discourse on Violence Against Women

Much academic attention has been devoted to violence against women (VAW) in Europe and research has focused on the mounting policy reform initiatives and capacity building strategies in the EU. Council of Europe initiatives in this area have, surprisingly, by contrast, remained under-researched. This paper seeks to fill the gap in the literature by engaging in an examination and critique of the ways in which the Council of Europe has incorporated and framed VAW within various legal and policy initiatives. It will employ a methodology of critical frame analysis as theorised by the literature on social movements, and anti-essentialist critiques within feminist literature to ask: how VAW is problematised; what solutions are offered; where they are located; to what extent they are gendered; and who has a voice in these policy and legal texts.

Shazia Choudhry


Driving with the Handbrake On: Competition Class Actions under the Consumer Rights Act 2015

This paper examines the new class action procedure for competition cases established by the Consumer Rights Act 2015. It examines whether the legislation and the procedural rules for the Competition Appeal Tribunal address the failures of previous procedures, focusing on three issues in particular i) the treatment of conflicting interests amongst class members ii) the rules on certifying collective proceedings; and iii) rules on funding. It argues that while the Act is a considerable improvement on what preceded it, the safeguards adopted will act as a drag on meritorious and unmeritorious claims alike, and as such there is likely to be continued under-enforcement of competition law.

Andrew Higgins


Injunctive Relief: But Let's Agree Not To Have It?

The ability of parties contractually to limit their right to seek injunctive relief has not often been judicially discussed. An interesting case from Singapore now appears to suggest that this is much more than a theoretical possibility. Some arguments can, however, be made to demonstrate that this is perhaps not the vista of opportunity over which some contract draughtsmen might rejoice, and care should be taken to ascertain the boundaries of the law, as explained in this note.

Lau Kwan Ho

Attribution and the Illegality Defence

In Jetivia SA v Bilta (UK) Ltd (in liquidation) all seven judges of the Supreme Court affirmed the decision of the Court of Appeal by holding that the illegality defence could not be raised as a defence against the claim made by the company because the wrongdoing of the directors and shareholder cannot be attributed to the company. Although all the judges unanimously agreed on the outcome of the case, their reasoning concerning the approach to attribution and the different circumstances under which attribution should or should not take place differed. Further, the Supreme Court was divided on the issue of the correct approach to the illegality defence.

Ernest Lim

No (,) More Bolam Please: Montgomery v Lanarkshire Health Board

Montgomery v Lanarkshire Health Board concerned a negligent non-disclose of certain risks involved in natural birth. The Supreme Court departed from Sidaway v Bethlem Royal Hospital, which formerly governed negligent risk disclosure. A new test was adopted: risks that are material must be disclosed, the materiality of a risk to be decided by reference to a reasonable person in the patient's position, or where the medical professional should be reasonably aware a particular patient is likely to attach significance to that risk. The Court emphasised risk disclosure practices must focus on what the patient wants to know. Yet the Court's portrayal of this change as a development of Sidaway is questionable. The decision is problematic in its engagement with precedent, the new test's future implications and statements regarding therapeutic privilege. Despite rejecting Bolam v Friern Hospital Management Committee's relevance to risk disclosure, this case is likely to remain relevant.

Clark Hobson

review article

The Old and New Philosophical Foundations of Tort Law

Review of John Oberdiek (ed), Philosophical Foundations of the Law of Torts, Oxford: Oxford University Press, 2014, 464 pp, hb, £75.00.

In 1995, David Owen offered a prolific collection of essays on the philosophical foundations of tort law. The book included works from leading corrective justice scholars such as Jules Coleman, Ernest Weinrib, Bruce Chapman and Stephen Perry, among many others. The book's message was clear at that time: the Law and Economics era was over, because it was possible to elaborate a normative account of tort law based on the idea of corrective justice. John Oberdiek now offers an attractive new volume on the same topic. Like its predecessor, Oberdiek's collection aims to capture most of the current philosophical work of legal scholars in the area of tort law. In his introduction, Oberdiek praises George Fletcher, Jules Coleman, and Ernest Weinrib for their ‘early efforts’ that ‘helped to substantiate philosophy of tort law's standing as a distinct subfield within philosophy of law’. These three legal philosophers, however, are not present in this collection. This fact is not a coincidence. It is true that the book includes tort scholars who have written extensively on the foundations of tort law, such as John Goldberg and Benjamin Zipursky, Stephen Perry, Peter Cane, and John Gardner, but it also includes works of theorists who do not necessarily work on tort law as a primary subject, such as David Enoch, Victor Tadros, R. A. Duff, and Linda Radzik.

Oberdiek's new collection is not much concerned with the discussion of theories of corrective justice, which was one of the major issues that concerned Owen's volume. In fact, the book has only one corrective justice theorist among its contributors, namely Gardner (even though his contribution to this volume does not defend a theory of corrective justice). Moreover, Goldberg and Zipursky argue in their chapter that a tort theorist (which they suggest should be a ‘responsibility theorist’) can be a corrective justice theorist, but it is not a requirement (26). Similarly, Scott Hershovitz suggests in his chapter that Aristotelian corrective justice should be modified or ‘corrected’ with a notion of revenge or ‘getting even’ (95). Additionally, Radzik's chapter also claims that Aristotelian corrective justice should be reformulated in terms of a ‘reconciliation theory of corrective justice’ (237). And finally, both Gardner's and Hanoch Sheinman's chapters focus on distributive justice, though they do not aim to criticise corrective justice as a normative principle for tort law. The book, then, seems to be committed to new theoretical accounts that have brought interesting and unexplored concerns into the philosophical debates on tort law, such as the role of apologies, the reconciliation of the parties (or getting even), holding wrongdoers responsible, and so on. The purpose of this commentary is to briefly describe this tension between the ‘old’ foundations of tort law based on the idea of corrective justice, and the ‘new’ foundations of tort law, emphasising alternatives to corrective justice, that most (though not all) of the contributors to Oberdiek's book seem to advance. At the end I will briefly offer my views regarding these new theoretical accounts of tort law and their implications.

Alberto Pino-Emhart

book reviews

Review of Cathryn Costello and Mark Freedland (eds), Migrants at Work: Immigration & Vulnerability in Labour Law, Oxford: Oxford University Press, 2014, 512 pp, hb, £70.00.

In devising the research project that has resulted in the publication of this excellent collection, Cathryn Costello and Mark Freedland identified a significant gap in the existing literature. As they explain in their introductory chapter, labour migration and its regulation have a major impact on labour law, but the extent of the impact is widely under-appreciated. With some notable exceptions, scholars of labour law don’t always tend to give consideration to migration, migration law and their intersection and interaction with labour law, and where they do not, their understanding of the latter is likely to be incomplete. With the aim of redressing this oversight, and further elaborating its importance, Costello and Freedland invited a group of scholars to address the question, how do migration law and immigration impact on labour law? The scholars were drawn from a range of jurisdictions and disciplines, and the resulting contributions deal, from a variety of perspectives, with the rights of migrant workers or particular groups of workers under international law and within human rights regimes and domestic and regional legal systems, and with questions of the approach taken by particular governments to the regulation of migration and to associated matters including irregular work and human trafficking.

Ruth Dukes

Review of Dimitrios Kyritsis, Shared Authority: Courts and Legislatures in Legal Theory, Oxford: Hart Publishing, 2015, 172 pp, hb £50.00.

The space between legal theory and constitutional theory can sometimes feel like a chasm. This might be thought surprising given the common concerns which are the focus of much debate in these disciplines: authority and normativity; right and might; systems, their institutions, and their subjects. In addition, legal theory and constitutional theory are both significantly structured by reference to disagreement between competing conceptual perspectives: the classic debates between positivists and anti-positivists on the one hand, and on the other (perhaps more contentiously) differences in emphasis between legal and political constitutionalists. Dimitrios Kyritsis’ new book, Shared Authority: Courts and Legislatures in Legal Theory, is a welcome attempt to bridge these gaps, both between the substantive concerns of legal and constitutional theory, and between the philosophical antagonists who dominate these alternative landscapes.

Michael Gordon

Review of Rob Merkin and Jenny Steele, Insurance and the Law of Obligations, Oxford: Oxford University Press, 2013, xliii + 414 pp, hb £79.00.

Economists sometimes say, tongue in cheek, that when you walk down the street, you are forcing other people to take out an insurance policy with you. The truth in this is that any system that holds you personally liable for the accidents you cause entails that the only way in which the victims can avoid having to pay for the resulting harm is to sue you. Absent insurance, their only
insurance is you. What lends the truth its levity is that it is strange to describe you as your victim’s insurer. For a start, it is people who choose insurers, not vice versa. And insurers do not cause the harms they compensate. Their liability is derivative rather than original: they pay for what someone else has done and is responsible for. The reason why you are not your victim’s insurer is that when you are liable for the harm you have caused them, your liability is original. You pay for what you have done. This, in turn, suggests that the conditions of your original liability are basically independent of insurance considerations. Figuring out whether you are liable for the accident you caused is one thing, finding out whether and when you may ‘lift’ or ‘shift’ the burden of liability to an insurer is another. Most ‘classical’ accounts of the law of obligations think like this. Many of their advocates probably find the joke mildly funny.

Rob Merkin and Jenny Steele like the joke too. They agree that it would be misleading to think of contract and tort law as some kind of large insurance system. But they reject the view that insurance is unrelated to the duties that contract and tort law impose on a person. In their view ‘insurance operates not at the periphery, but at the core of the law of obligations, in both practical and conceptual terms’ (3). At the same time, they believe that this operation does not conform to a single idea or formula. In their view, insurance can play a different role in different contexts: sometimes it helps to determine who is liable for a loss; sometimes it settles questions about the rights of third parties; sometimes it affects the shape of litigation, and so on. This qualfication gives Merkin and Steele’s overall account a somewhat pointillist feel. The main message of Insurance and the Law of Obligations, namely that private lawyers cannot do their job well unless they think hard about insurance, is based not on some grand theoretical claim about the connection between insurance and the aims of the law of obligations, but on a patient discussion of various contexts in which considerations of insurance affect the duties or burdens that contract and tort law impose on people.

Emmanuel Voyiakis

Review of Cass Sunstein, Why Nudge: The Politics of Libertarian Paternalism, New Haven/London: Yale University Press, 2014, 208 pp, pb £10.99.

On 15 September 2015 President Obama signed an executive order which directs US federal agencies to incorporate behavioral and social sciences into their policies. This idea to give greater weight to behavioral considerations in shaping government programs has been popularised by Harvard Law School Professor Cass Sunstein, whose main proposition is that improved choices and information disclosure could softly nudge citizens to make better decisions, improve welfare, and enhance efficiency of government. Sunstein’s Why Nudge? The Politics of Libertarian Paternalism (Why Nudge?) is one of several recent attempts to offer a fresh approach to the role of government. This book is based on Sunstein’s personal experience gained while serving as an Administrator of the White House Office of Information and Regulatory Affairs between 2009 and 2012. Why Nudge? is a follow-up work to his best-selling book Nudge (written with Richard Thaler and first published in 2008 by Penguin).

Marcelo Corrales and Paulius Jurčys

The Review

Published May 2016
Frequency Bi-Monthly
Volume 79
Issue 3
Print ISSN 0026-7961
Online ISSN 1468-2230

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