Showing papers in "Cambridge Law Journal in 2018"

What We Don't See When We See Copyright as Property

Abstract: For all of the rhetoric about the central place of authors in the copyright scheme, our copyright laws in fact give them little power and less money. Intermediaries own the copyrights, and are able to structure licenses so as to maximise their own revenue while shrinking their pay-outs to authors. Copyright scholars have tended to treat this point superficially, because – as lawyers – we take for granted that copyrights are property; property rights are freely alienable; and the grantee of a property right stands in the shoes of the original holder. I compare the 1710 Statute of Anne, which created statutory copyrights and consolidated them in the hands of publishers and printers, with the 1887 Dawes Act, which served a crucial function in the American divestment of Indian land. I draw from the stories of the two laws the same moral: Constituting something as a freely alienable property right will almost always lead to results mirroring or exacerbating disparities in wealth and bargaining power. The legal dogma surrounding property rights makes it easy for us not to notice.

The Meaning and Significance of Conscience in Private Law

Abstract: This article argues that the idea of conscience can play a useful, albeit limited and highly general, explanatory role in private law, if we have regard to two distinctive contexts in which it is used. First, it tells us something about how equitable obligations arise and reminds us that they directly enforce moral duties. Second, it conveys the message that the courts are reluctant to impose primary liabilities which restrict the exercise of legal rights absent a past or prospective breach of moral duty by the defendant. Without further explanation, the indiscriminate invocation of conscience in both contexts can lead to confusion and uncertainty, but if the distinction between obligation and liability is observed, the explanatory force of conscience in relation to each becomes clearer, and it plays a valuable role in bolstering the authority of private law.

The office of the crown

Abstract: A troubling veil of mystery still shrouds the central institution of the British Constitution – the Crown. In this paper, I examine the modern utility of five historical doctrines: the doctrine of the “King's two bodies”; the doctrine that the Crown is a “corporation sole”; the doctrine that the King can “do no wrong”; the doctrine that (high) public offices are “emanations” of the Crown; and the doctrine that the Crown is “one and indivisible”. Using some insights from social ontology, the history of office in the Western legal tradition, and the sociology of role and status, I argue that the first four of these doctrines can be refashioned into a conception of the Crown as an office. An office is an enduring institutional entity to which individuals bear a relationship from time to time, but which is separate from any individual incumbent and is to be considered in legal analysis as a separate acting subject. Using the logic of office, official personality and official action, I distinguish between the Queen, the Crown, Her Majesty's Government and the Commonwealth and argue that together they provide a serviceable model of the modern British Constitution. The final doctrine, however, must be abandoned – the Crown is plural and divisible and this must be taken into account when using the Crown to reason about the UK's relationship to other constitutional orders.

Re-theorising Consumer Law

Abstract: This article develops a new theoretical framework for understanding consumer contract law, one based on competing ethics of self-interest/reliance and need. It shows how this is a better way of understanding choices as to levels of protection than the traditional “freedom versus fairness” framework. The self-interest/reliance ethic favours rules allowing traders to use processes to escape responsibility for poor quality and harsh outcomes, while the need ethic is concerned with consumer weaknesses and better protects against such outcomes. The article also shows that need-based rules are usually more effective at improving clarity and certainty, and where such rules cause uncertainty, at least as much uncertainty is caused by the alternative self-interest/reliance-based rules.

Sources of law

Abstract: This article aims to clarify what is meant by “a source of law” argument. A source of law argument justifies an action by showing that it has as its legal basis the best interpretation of a rule, principle or value identified in a material source of law. Such an argument is authority-based in that it appeals for its correctness to a collective decision to adopt a particular rule. The identification comes from an analysis of the practices within a specific legal community. The concept of “a rule of recognition” is not helpful since it glosses over the contestability of what is a source of law and its revisability over time. In a second part, the article illustrates the dynamics of change by reference to the status of EEC/EU law in a number of national laws and the 1966 Practice Statement on precedent in the House of Lords.

Judicious review: the constitutional practice of the UK Supreme Court

Abstract: The role of the UK Supreme Court (UKSC) as conventionally understood is to give effect to, and not to challenge, the will of Parliament. At the same time, the UK's constitution forces the UKSC to develop a constitutional jurisprudence to resolve clashes of higher-order principles, for instance between parliamentary sovereignty and the rule of law. This development puts the legitimacy of unelected and unaccountable judges invalidating legislation under the spotlight. Instead of arguing for US-style strike-down powers, I argue that cautious and corrective judicial intervention is constitutionally mandated and democratically legitimate.

“a sacred trust for the future”: regulating insurance, 1800–70

Abstract: The history of commercial law has often been written as if it were merely a product of the common law, disregarding the role played by legislation. The principal exception to this has been work on company law. Until recently, the prevailing view has been that the Companies Acts 1844–62 represented the triumph of the free market and the expulsion of the state from business. But, although these laws did make incorporation easier and granted companies privileges, what this view ignores is that they also imposed regulation, such as obligations to register the company and charges on its assets and to hold shareholder meetings. At the forefront of these legal changes were insurance companies. Yet, in spite of the proliferation of these companies and their role in, for example, the inquiry that led to the 1844 Act, they have been neglected. This may be because, while the successful campaign in 1824 to remove restrictions on access to the marine-insurance market would seem to support the view of legislation driven by free-market ideas, that explanation seems contradicted by the closing of access to the life-assurance market and the imposition of various obligations on life offices in 1870, a time when the liberalisation of company laws seemed at their peak. Neither development can, however, be so easily explained, and both show the effect of fierce divisions within the insurance industry.

Analysing institutional liability for child sexual abuse in England and Wales and Australia: Vicarious liability, non-delegable duties and statutory intervention

Abstract: This paper will argue that, in the light of recent case law in the UK and Australia, a new approach is needed when dealing with claims for vicarious liability and non-delegable duties in the law of tort It will submit that lessons can be learnt from a comparative study of these jurisdictions, notably by reflecting on the courts’ treatment of claims of institutional liability for child sexual abuse In parallel to decisions of their highest courts, public enquiries in Australia and England and Wales, established to report on historic child sexual abuse and how to engage in best practice, are now reporting their findings which include proposals for victim reparation: see Royal Commission into Institutional Responses to Child Sexual Abuse (Australia, 2017) including its Redress and Civil Litigation Report (2015); Independent Inquiry into Child Sexual Abuse (Interim report, England and Wales, 2018) The Australian reports suggest reforms not only to state practice, but also to private law This article will critically examine the operation of vicarious liability and non-delegable duties in England and Wales and Australia and proposals for statutory intervention It will submit that a more cautious incremental approach is needed to control the ever-expanding doctrine of vicarious liability in UK law and to develop more fully its more restrictive Australian counterpart

Historiography and the Law of Property Act 1925: the return of Frankenstein

Abstract: This article considers how problems in legal historiography can lead to real legal problems, through a case-study of two recent judgments which appear to revolutionise the law on overreaching under section 2(1)(ii) of the Law of Property Act 1925. Their reasoning ignored plain wording in the Act, in a way foreshadowed by problems in the historiography of the 1925 property legislation; and the legislative history shows that the version of overreaching they promote, one with a clear political meaning, was rejected by Parliament. One of these decisions has now been reversed on appeal, but on reasoning so untenable as to invite further challenge; and now two Court of Appeal judgments on overreaching contradict, without even mentioning, two prior Court of Appeal decisions and a decision of the House of Lords. The court should reaffirm the law on overreaching, and academics should develop a new historiography.

Two models for discharge of a contract by repudiation

Abstract: This article compares two models of discharge for repudiation The first – termed the “mirror image model” – has come to the fore only in recent years It treats the applicable principles as the mirror image of those that govern discharge for failure to perform a contractual term Under the second model – the “differentiated model” – repudiation is analysed in terms of various criteria that respond to conceptual diversity within the basis for discharge The two models diverge, at the heart of the repudiation doctrine, when the issue is whether a reasonable person would regard the promisor as having refused to perform the contract It is argued that the differentiated model is the better model, and also the preferred view of the common law

The role of the court in debt restructuring

Abstract: This paper examines the intervention of the law, and the role of the court, in debt restructuring, both in terms of imposing constraints on creditors and in seeking to ameliorate the potential abuses that can arise from such constraints. Three potential forms of abuse are examined: the imposition of a restructuring on dissenting creditors, which introduces the potential for wealth transfers between creditors; the imposition of a moratorium while a restructuring is negotiated, which might lead to misuse of the process by managers wishing to prop up companies which are not viable, or may allow managers of a viable business to “shake off” liabilities that it is capable of servicing; and the facilitation of rescue finance, which raises the potential for new creditors to be preferred at the expense of existing creditors. It is argued that the court's role in protecting creditors from these three forms of potential abuse is vital, although the nature of that role differs according to the form of abuse. Recent debt restructuring reform proposals in both the UK and the EU, which adopt distinct approaches to the role of the court in this process, are examined in the light of this discussion.

The doctrine of benefit and burden: reforming the law of covenants and the numerus clausus “problem”

Abstract: The doctrine of benefit and burden - an indirect method for enforcing the burden of positive freehold covenants – developed as an exception the strict Austerberry rule that the burden of positive covenants cannot bind successors directly at law Three recent Court of Appeal cases (Davies v Jones; Wilkinson v Kerdene and Elwood v Goodman) confirm the continued existence and application of the doctrine but also reveal its deficiencies and limitations This article explores the contemporary application of the doctrine, identifies its theoretical, historical and elemental frailty and, drawing on recent reform proposals of the Law Commission, highlights the case for reform In so doing, this article argues that a vital theoretical issue has been overlooked in the reform debate: the numerus clausus principle

The significance of status and genetics in succession to titles, honours, dignities and coats of arms: making the case for reform

Abstract: The significant evolution in family law in the last four decades has seen the breaking down of traditional barriers: illegitimacy has been swept away, and children conceived through assisted reproduction are now recognised as the legal children of their parents, even absent a genetic link. Transgender heirs are also fully recognised in their new gender. Yet fundamental exceptions remain in the case of succession to titles, honours, dignities and coats of arms, discriminating against children born out of marriage, or non-genetic children, or transgender children. The decision of the Privy Council in Pringle of Stichill emphasised this divergence, and raised the question of whether law reform is needed. In this article, we explore the rules which govern succession to titles and dignities and the two-tier system which has arisen. By pointing out the inconsistencies and lack of rationale therefor, we make the case for law reform to bring titles and dignities into line with the current understanding of family and succession.

The limits of state and diplomatic immunity in employment disputes

Abstract: TWO decisions of the Supreme Court – Benkharbouche v Secretary of State for Foreign and Commonwealth Affairs [2017] UKSC 62, [2017] 3 W.L.R. 957, and Reyes v Al-Malki [2017] UKSC 61, [2017] 3 W.L.R. 923 – demonstrate the limitations of state and diplomatic immunity in employment disputes, and raise important questions concerning the interaction between immunity and other rules of international law.

Principle, practice, and precedent: vindicating justice, according to law

Abstract: Legal judgment, I argue, entails moral judgment; legal obligations, correctly identified, are genuine moral obligations. Dworkin's legal theory is instructive, but problematic: his account of integrity fails to provide a convincing reconciliation of practice and principle. We can, however, defend a superior account in which the moral ideals that we invoke to justify legal practice – affirming its legitimacy under certain conditions – retain their force throughout our judgments about its specific demands in particular cases. Common law reasoning exemplifies that approach, reflecting the interdependence of practice and principle. It is an internal, interpretative inquiry, drawing on the moral resources of our own tradition, treated as an influential guide to the requirements of justice. The law is constituted, accordingly, neither by its socially authoritative sources, whatever their merits, nor by the moral effects of our legal practice. It is rather the scheme of justice we construct in our continuing efforts to bring our practice closer to the ideals that inspire and redeem it.

Varying contracts in the supreme court

Abstract: otherwise)? Must the court’s conclusion about implied terms always and necessarily determine the “voluntary assumption of responsibility” question too (qua foundation of a tortious duty)? A careful distinction must be made between “terms implied by law” (i.e. imposed as a matter of legal policy) and those “implied in fact” (i.e. present, even though unspoken, in a particular employment contract). The precise juridical nature of the “voluntary assumption” doctrine is also now in doubt. The rich policy reasoning running through Commissioners of Customs and Excise v Barclays Bank plc [2006] UKHL 28, [2007] 1 A.C. 181, was conspicuously absent in NRAM Ltd. v Steel [2018] UKSC 13, [2018] 1 W.L.R. 1190 – but then NRAM was a more straightforward case. The criteria for recovering pure economic loss in tort, and the relationship between “voluntary assumption” and the implication of contract terms, will continue to be difficult issues. Dryden v Johnson Matthey indicates that any bodily change which affects freedom of action has a negative effect and thereby amounts to “personal injury”. That the effect on the freedom of these particular claimants was significant (i.e. affected their employability) meant it was no “harmless injury”. It was irrelevant that others might not have been significantly affected by platinum sensitisation. Irrelevant also that the negative effects were essentially financial not physical ones. It is a decision at the very limit of “personal injury”.

Transfer of chattels by non-owners: still an open problem

Abstract: The current law relating to the unauthorised dispositions of chattels is an arbitrary and unpredictable mess that has grown up haphazardly and piecemeal. In this connection we need a default rule that is straightforward rational and logical. Such a rule should follow three principles. First there should be a background rule of entrustment, whereby anyone entrusting another with goods takes the risk of subsequent misdealing. Secondly, this rule should apply to all proprietary interests and not simply to ownership. Thirdly, it should be open to exceptions where there is good reason to admit them, for example to accommodate specific schemes covering particular types of security interest.

Public Inquiries: Wrong Route on Bloody Sunday. By Louis Blom-Cooper. [Oxford: Hart Bloomsbury, 2017. xvi + 158 pp. Hardback £40.00. ISBN 978-1-50990-678-9.]

Abstract: weak. Powerful states may hide behind the veil of permissibility to justify not taking third-party countermeasures against one another, just as they can hide behind the veil of legitimate legal ends to justify unilateral action against weaker states for political gains. It is perhaps unfair to expect the author to resolve this normative quandary, given that the aim of the book is avowedly positivist. But it seems important that this central difficulty should colour, weigh in and restrain, our evaluations and assessment of the practice and opinio juris of third-party countermeasures. As the author points out, these measures have been highly ineffective in achieving their only legitimate aim: to induce compliance with international law. Of course, the author is right to note that, even if they fail to induce compliance, coercive measures are still important as they send a “powerful signal” that serious illegality will not be tolerated (p. 282). But this answer is not enough to explain why such measures ought to infringe the rights of the target state. Surely third-party acts of retorsion could equally send such a signal, as the recent reaction of the UK, the US and EU states to the Russian use of chemical weapons in Salisbury has shown. The book advances the knowledge and understanding of its subject with its thorough review of practice. What is needed now is a robust normative justification, and perhaps some creative thinking and ambitious proposals for the development of collective institutional means to redress harm to communitarian norms. This is a topic that ought to be addressed with great caution because, alongside the promise of enforcement of international law, it contains within it the seed of anarchy. Just as it is difficult to accept that two wrongs make a right, it is even harder to see how many wrongs can ever make a right.

The contribution of legislative drafting to the rule of law

Abstract: Drafters of legislation occupy an important position of constitutional significance, involving the translation of political will into legal form. They help clarify and refine the instructions from politicians and create statutory schemes which are internally coherent and have external coherence with wider legal and constitutional values. They begin the process of disciplining and refining political will through application of constitutional reason, which is then continued at the stage of interpretation of statutes by the courts. Drafters of legislation thus contribute to the formal rule of law values of predictability and certainty and also to more substantive values of fairness and respect for constitutional principles and rights. The better the drafting of legislation, the smoother the integration of democracy and the rule of law and the less need there is for interstitial law-making by judges in the interpretive exercise.

The International Covenant on Economic, Social and Cultural Rights: Travaux Préparatoires 1948–1966. Edited by Ben Saul. [Oxford University Press, 2016. 2 vols. cxxvi + 2,580 pp. Hardback £325. ISBN 978-0-19-875832-7 (set).]

Abstract: accused has no right to demand a jury trial). Tugendhat’s argument that Article 6 is narrower than the common law right of access to justice could touch on the deeper protection offered by the former. It is a shame not to have discussion of how the Criminal Justice and Public Order Act 1994 has stripped away the privilege against self-incrimination in English law alongside Tugendhat’s discussion of the ECHR’s role in ending the executive’s sentencing function. Equally, the assertion that the Strasbourg Court could have fitted a right to reputation more logically into Article 5 than Article 8 requires more elaboration. Another example is the statement that the ECHR suits originalist interpretation to a greater extent than common law rights. Discussion of the living instrument doctrine would have been helpful here, as would some discussion of the ability for common law rights to shrink, as well as grow. And more discussion might have been desirable of the difference between rights and liberties. The author touches on this when he discusses the positive obligations placed on the state by the ECHR, such as to facilitate protest. Arguably, he underplays their importance. Tugendhat is optimistic to a fault. He suggests that no Government which proposed to abolish unemployment benefits (inter alia) would be elected because of the British public’s strong belief in such a safety net. That view seems almost idealistic. Elsewhere, he notes that the legislature’s power to reverse judges’ decisions is generally used only when the judge was wrong. The fuller picture is less rosy. For example, the Jobseekers (Back to Work Schemes) Act 2013 was designed retrospectively to re-activate regulations struck down by the court and was subsequently declared incompatible (R. (on the application of Reilly) v Secretary of State for Work and Pensions [2016] EWCA Civ 413, [2017] Q.B. 657 being the final case in the saga). This reader does not quite share the author’s optimism. Indeed, not everyone will agree with the arguments advanced in this book. Those who need convincing may be the least likely to read it. But its publication to provoke a discussion is to be welcomed. This review is designed to inform lawyers as to whether they might wish to read this book. It should not dissuade the general public (its main target audience) from doing so.

Cheating and dishonesty

Abstract: THE key issue for determination by the Supreme Court in Ivey v Genting Casinos (UK) Ltd. [2017] UKSC 67, [2017] 3 W.L.R. 1212 was whether the crime of cheating at gambling, contrary to s. 42 of the Gambling Act 2005, requires proof of dishonesty. Even though the Court unanimously held that it did not, the Court went on to consider the appropriate test of dishonesty in both criminal and civil law and, in doing so, adopted a unified test which is essentially objective.

Contract formation and implied terms

Abstract: WELLS was struggling to sell some flats. He mentioned this to a neighbour, who put Wells in touch with Devani. Wells and Devani spoke over the telephone. The trial judge found that Devani told Wells that he was an estate agent, and his usual commission was 2% + VAT. Wells agreed to this, but the parties did not expressly agree upon what was to trigger the commission. Devani subsequently introduced a purchaser to Wells who bought the flats. Was there a binding contract between Wells and Devani? Lewison and McCombe L.JJ. answered “No” (Wells v Devani [2016] EWCA Civ 1106, [2017] Q.B. 959). The trial judge and Arden L.J., dissenting in the Court of Appeal, answered “Yes”. The Supreme Court has granted permission to appeal. It is to be hoped that the Justices will clarify the important issues of contract law raised by these simple facts and allow the appeal.

Gerrymandering in America: The House of Representatives, the Supreme Court, and the Future of Popular Sovereignty. By Anthony J. McGann, Charles Anthony Smith, Michael Latner and Alex Keena [Cambridge University Press, 2016. vi + 261 pp. Paperback £24.00. ISBN 978-13-16507-67-4.]

Abstract: access them. But that is the key here: an 18-volume outcome does rather strain affordability as well as portability; and although a huge asset for research, is less likely to find use as a teaching aide or any other function entailing a brief consultation. At £325.00 and 2,580 pages the ICESCR travaux are also not your average commuter’s read, but they can be carried about and worked through in a relatively efficient way. Helping that possibility along is Saul’s detailed list of contents, in which the title of each document is accompanied by a keyword summary of the issues covered in it. Most usefully, this list further identifies documents that have not been reproduced but might be relevant; a title and keyword summary are also provided for these documents. There is no separate index. There would have been added benefit to arranging the keywords of the list of contents into one, but the list in itself does offer valuable guidance. Of value also is Saul’s succinct introduction, which explains the texts that preceded and were influential upon the drafting of the ICESCR, and contains an account of the drafting process, including of moments at which the inclusion of economic and social rights in a binding legal agreement became a matter of debate. The whole is a short yet nuanced overview of the chain of events that shaped the ICESCR. It whets the reader’s appetite to know more, and also paves the ground for the more intricate record of deliberations that is provided via the materials selected as the travaux. In short these volumes of the travaux are timely and well compiled. The editor has made thoughtful presentation decisions that will facilitate the use of the volumes at various level of engagement (here it is also worth acknowledging the design elements; especially the clean, well-spaced layout of the text). An immensely valuable resource in themselves, we should now hope that their publication will also catalyse the complete electronic transcription (and free online availability) of the full record of ICESCR’s preparation.

The presumptions in favour of marriage

Abstract: Eighteenth-century courts needed to rely on presumptions in favour of marriage for a number of reasons, some practical and some legal, but the misleading reporting of one leading nineteenth-century case, followed by institutional changes and a stronger focus on precedent, led to the original evidential assumptions being obscured. A further blurring of the different strands of the presumption occurred in the twenty-first century, leading to confusion in recent cases. Understanding how the much-misunderstood presumptions have developed reveals why they were needed, when they became decoupled from their evidential underpinnings, and how, when and why they should operate today.

The rule of law and access to justice: some home truths

Abstract: MISAPPREHENSIONS about the UK's constitution are ten-a-penny. Most prominent among them, perhaps, are the notions that the UK “has no constitution” and that fundamental rights cannot meaningfully exist without an “entrenched” or “written constitution”. To that list of misunderstandings can now be added the ideas – brought to light by the Supreme Court's judgment in R. (UNISON) v Lord Chancellor [2017] UKSC 51, [2017] 3 W.L.R. 409 – that the judicial system, far from being a non-negotiable feature of any constitutional democracy, is nothing more than a public service, and that access to it can be regulated by the executive accordingly. To describe UNISON as a welcome corrective to such misconceptions would be to engage in rash understatement. In a tour de force that ought to be compulsory reading for every Minister and parliamentarian, the Court elucidates the true value of independent courts and tribunals, illuminates the common law's potential as a guarantor of basic rights, and reiterates an axiomatic set of constitutional home truths.

Consent to body modification in criminal law

Abstract: tion was systematically problematic. Lord Kerr (a former Lord Chief Justice of Northern Ireland) gave a characteristically robust critique of the legislation. But one of the boldest statements was Lord Mance’s condemnation of the “untenable” legislation, which he thought to be in need of “radical reconsideration” (at [135]). Despite not making a declaration of incompatibility, he pleaded for policymakers to “recognise and take account of these conclusions, at as early a time as possible” (ibid.). Time will tell what the political reaction to this “non-declaration” will be. The substantive issue turned on the unsettled question of how systematically a piece of legislation must breach rights for a declaration of incompatibility to be made. For Lord Kerr, it would have been enough that there was a “likelihood” of suffering to “at least some members of the vulnerable group” (at [257], emphasis in original). For Lord Reed, the legislation would have to breach Convention rights in “all or almost all cases” (at [355]). And Lord Mance’s “legally significant number of cases” test lay somewhere in-between, bringing little clarity to the area. Treatment of both the procedural and the substantive issues shows the courts’ continued confusion about their novel role of reviewing legislation under HRA, s. 4, rather than their traditional role of judicially reviewing unlawful acts.

Lawful-act duress and marital agreements

Abstract: IN Thorne v Kennedy [2017] HCA 49, the High Court of Australia was presented with an opportunity to consider the operation and intersection of undue influence, unconscionable conduct and duress in the context of marital agreements. Despite hopes that the Court would seize the chance to resolve an important open question in respect of duress, the decision was instead marked by an unhelpful caution, offering little guidance on the law's future development.

Organisational torts: vicarious liability versus non-delegable duty

Abstract: ON 18 October 2017, the UK Supreme Court decided Armes v Nottinghamshire County Council [2017] UKSC 60. The Court ruled that a local authority could be vicariously liable for intentional torts committed by foster parents against a child whom the authority had placed in their care. The outcome was not entirely unexpected. Less than two decades ago it would have been inconceivable. After all, isn't it the case that the common law does not recognise a general principle of liability in tort for the acts of third parties? And that in so far as it does, it holds an employer vicariously liable for a tort committed by an employee in the course of their employment? This is a very long way from the facts of Armes .