Showing papers in "Modern Law Review in 2013"
TL;DR: In this paper, the European Union's response to the euro-crisis has altered the constitutional balance upon which its stability is based, and it is argued that recent reforms are likely to have a lasting impact on the ability of the EU to mediate conflicting interests in all three areas.
Abstract: This article analyses how the European Union's response to the euro-crisis has altered the constitutional balance upon which its stability is based. It argues that the stability and legitimacy of any political system requires the structural incorporation of individual and political self-determination. In the context of the EU, this requirement is met through the idea of constitutional balance, with ‘substantive’, ‘institutional’ and ‘spatial’ dimensions. Analysing reforms to EU law and institutional structure in the wake of the crisis – such as the establishment of the ESM, the growing influence of the European Council and the creation of a stand-alone Fiscal Compact – it is argued that recent reforms are likely to have a lasting impact on the ability of the EU to mediate conflicting interests in all three areas. By undermining its constitutional balance, the response to the crisis is likely to dampen the long-term stability and legitimacy of the EU project.
121 citations
TL;DR: In this article, the European Union's accession to the European Convention on Human Rights (ECtHR) has been discussed and the reasons for, and consequences of the EU's primus inter pares position under the Convention and within the Council of Europe, and the likely practical effect of its accession for its Member States.
Abstract: After the European Union's accession to the European Convention on Human Rights the EU will become subject to legally binding judicial decisions of the European Court of Human Rights (ECtHR) and participate in statutory bodies of the Council of Europe (Parliamentary Assembly; Committee of Ministers) when they act under the Convention. Convention rights and their interpretation by the ECtHR will be directly enforceable against the EU institutions and against Member States when acting within the scope of EU law. This will vest the ECHR with additional force in a number of Member States, including Germany and the UK. All Member States will further be subject to additional constraints when acting under the Convention system. The article considers the reasons for, and consequences of the EU's primus inter pares position under the Convention and within the Council of Europe, and the likely practical effect of the EU's accession for its Member States.
43 citations
TL;DR: The tragedy of the anticommons as discussed by the authors is the case where too many owners control a single resource, cooperation breaks down, wealth disappears, and everybody loses, which is a classic example of a commons tragedy.
Abstract: This article gives a concise introduction to the ‘tragedy of the anticommons.’ The anticommons thesis is simple: when too many people own pieces of one thing, nobody can use it. Usually, private ownership creates wealth. But too much ownership has the opposite effect – it leads to wasteful underuse. This is a free market paradox that shows up all across the global economy. If too many owners control a single resource, cooperation breaks down, wealth disappears, and everybody loses. Conceptually, underuse in an anticommons mirrors the familiar problem of overuse in a ‘tragedy of the commons.’ The field of anticommons studies is now well-established. Over a thousand scholars have detailed examples from across the innovation frontier, including drug patenting, telecom licensing, climate change, compulsory land purchase, oil field unitisation, music and art copyright, and post-socialist economic transition. Fixing anticommons tragedy is a key challenge for any legal system committed to innovation and economic growth.
39 citations
TL;DR: In this paper, a theoretical approach to children's rights in youth justice, located within a wider rights-based theory of criminal justice which emphasises the centrality of citizens' autonomy, is developed.
Abstract: This paper develops a theoretical approach to children's rights in youth justice, located within a wider rights-based theory of criminal justice which emphasises the centrality of citizens' autonomy. Understanding what is special about children's rights in the youth justice system requires an understanding of how children's autonomy differs from that of adults. One difference is that within the legal system children are not considered to be fully autonomous rights-holders, because childhood is a time for gathering and developing the assets necessary for full autonomy. These assets should be protected by a category of ‘foundational’ rights. It is argued that an essential component of a rights-based penal system for children is that it should not irreparably or permanently harm the child's foundational rights. The concept of foundational rights can then underpin and strengthen international children's rights standards, including those relating to the minimum age of criminal responsibility, differential sentencing for children and adults and a rights-based system of resettlement provision.
36 citations
28 citations
TL;DR: It is argued that the reforms threaten accountability for three reasons: they make the Secretary of State for Health's relationship with the NHS more complex, they create opaque networks of non‐statutory bodies which may influence NHS decision‐making, and they ‘juridify’ policy choices as matters of law.
Abstract: This article examines the Health and Social Care Act 2012 and associated reforms to the National Health Service in England. It focuses on the Act's policy of making the NHS market more ‘real’, by both encouraging and compelling NHS bodies to act as ‘market players’. The article considers whether the reforms are compatible with the constitutional requirements of accountability for the provision of a public service such as the NHS. It argues that the reforms threaten accountability for three reasons: they make the Secretary of State for Health's relationship with the NHS more complex, they create opaque networks of non-statutory bodies which may influence NHS decision-making, and (especially in relation to competition) they ‘juridify’ policy choices as matters of law. Taken together, these arguments suggest that there is force in the claim that the reforms will contribute to ‘creeping’ – and thus unaccountable – privatisation of the NHS.
27 citations
TL;DR: In this article, the authors argue that liquidity, short-termism and low involvement in corporate governance are fundamental ingredients of shareholders' value maximisation strategies and that neither shareholders nor their representatives will voluntarily adopt restrictions which inhibit their ability to pursue these strategies, such as those presented by the Stewardship Codes.
Abstract: This paper argues that liquidity, short-termism and low involvement in corporate governance are fundamental ingredients of shareholders’ value maximisation strategies. Neither shareholders nor their representatives will voluntarily adopt restrictions which inhibit their ability to pursue these strategies, such as those presented by the Stewardship Codes. Utilising Marxist and progressive theory this paper evidences the tendency for all capital (including shares) to seek liquidity. It presents historical evidence which shows that political policy can either restrict this tendency, as it did in the progressive and post war period, or facilitate it, as it did in nineteenth century England and in the current neoliberal period. The shareholder empowerment initiatives examined in this paper are therefore best understood as strategies to justify shareholder claims in the current crisis and to thereby protect the neoliberal status quo.
25 citations
TL;DR: In this article, the Court of Appeal imposed for the first time liability on a company for a breach of its duty of care to an employee of its subsidiary, and proposed a new four-part test for ascertaining a parent company's responsibility for the health and safety of individuals employed by group companies.
Abstract: In Chandler v Cape plc, the Court of Appeal imposed for the first time liability on a company for a breach of its duty of care to an employee of its subsidiary. In doing so, the court laid out a new four-part test for ascertaining a parent company's responsibility for the health and safety of individuals employed by group companies. Although liability of parent companies may be justified under the right circumstances, the court's approach in Chandler is problematic in a number of ways and raises more questions than it answers.
20 citations
TL;DR: In this article, the authors argue that what is emerging in Europe is a constitution that reflects a common good (predominantly conceived in economic terms), albeit one which is legally, political and socially contested.
Abstract: What kind of constitution is emerging in Europe? There are two approaches to answering this question. The first, a ‘foundational’ approach, rejects the premise: there can be no real constitution in the absence of a ‘demos’, a foundation which exists only nationally. The second, ‘freestanding’ approach, depicts it as paradigmatic of a broader phenomenon of cosmopolitan constitutionalism, based on individual rights guaranteed through a transnational rule of law. Rejecting both for their failure to account for European constitutionalism as a historical process of polity-building, a third approach, ‘political constitutionalism’, is proposed, capturing the dynamic quality of constitutionalisation in the EU. From this perspective, what is emerging in Europe is a constitution that reflects a common good (predominantly conceived in economic terms), albeit one which is legally, political and socially contested. It is by capturing this complex picture of the political formation of Europe that the constitutional question will be most fruitfully pursued.
18 citations
TL;DR: In this paper, the authors argue that the "reasonable doubt" standard does not lend itself to the sliding-scale approach mandated by decision theory and that the question whether in this enterprise a doubt is reasonable is not susceptible to a decision-theoretic approach.
Abstract: The ‘reasonable doubt standard’ is the controlling standard of proof for criminal fact finding in several jurisdictions. Drawing on decision theory, some scholars have argued that the stringency of this standard varies according to the circumstances of the case. This article contends that the standard does not lend itself to the ‘sliding-scale’ approach mandated by decision theory. This is supported through investigation of the concept of ‘reasonableness’. While this concept has mostly been studied as it operates with reference to practical reasoning, scant attention has been given to the meaning that it acquires when referred to theoretical reasoning. Unlike in the former case, reasonableness does not in the latter depend on the reasoner's attitudes in favour of the outcomes of a decisional process. Therefore, since criminal fact finding is an instance of theoretical reasoning, the question whether in this enterprise a doubt is reasonable is not susceptible to a decision-theoretic approach.
17 citations
TL;DR: In this paper, it is shown that mandatory bids prevent inefficient control transfers, where minority shareholders protection rules provide inadequate protection, and they help facilitate transfers to the most efficient bidders in multi-bidder settings.
Abstract: The mandatory bid rule has its origins in the UK and now applies throughout the EU and in many other jurisdictions. Under a mandatory bid, an acquirer of a controlling stake in a listed company has to offer to the remaining shareholders a buy-out of their minority stakes at a price equal to the consideration received by the incumbent controller. While the rule warrants that no value-destroying control transfers take place, it is often criticised for preventing value-increasing transactions. This paper challenges some of the claims made by critics of mandatory bids. Highlighting the effects of synergy gains in private sale-of-control transactions, it is shown that mandatory bids prevent inefficient control transfers, where minority shareholder protection rules provide inadequate protection. Furthermore, mandatory bids help facilitate transfers to the most efficient bidders in multi-bidder settings. The mandatory bid is justifiable, on economic grounds, in wider circumstances than is commonly assumed by law and economics scholars.
TL;DR: In this article, the authors argue that the convergence of human rights law and negligence law is based on two false assumptions, namely that human rights and negligence perform similar functions within our legal order and that the norms of human right law are more fundamental than the norms encapsulated in negligence law.
Abstract: A number of judges and academics have argued in favour of the convergence of negligence law with human rights law. By contrast, the thesis of this article is that the two legal orders should develop independently, so that for the most part the law of negligence ought not to be affected by human rights considerations. It is argued that the case for convergence is based on two false assumptions, namely that human rights law and negligence law perform similar functions within our legal order and that the norms of human rights law are more fundamental than the norms encapsulated in negligence law. It is also argued that convergence would undermine the coherence of negligence law. Ultimately, the case for separate development rests on the desirability of recognising public law and private law as autonomous normative systems with their own distinctive rationales, concepts and core principles.
TL;DR: In this article, the authors explore whether the presumption of innocence is compromised by state declarations that a person is other than innocent, but which are neither predicated on nor equivalent to a criminal conviction.
Abstract: This article explores whether the presumption of innocence is compromised by state declarations that a person is other than innocent, but which are neither predicated on nor equivalent to a criminal conviction. The task ultimately is threefold: in a descriptive sense, to establish the existing parameters of the presumption, in particular tracing its incremental expansion by the European Court of Human Rights; secondly, to present a normative argument as to what I believe the presumption should further entail, drawing on its recent doctrinal extension but moving beyond this in certain respects; and then finally to ascertain whether any labels or declarations by the state either before or absent a finding of criminal liability are problematic as regards the presumption of innocence as I propose it should be construed, and what ought to be done about this.
TL;DR: The authors argue that environmental regimes entailing considerable administrative discretion are now serving to contextualise and partly to constitute property rights in English law, and that environmental law challenges property scholars to reflect on the impact of administrative decision-making on property rights, conceptually, doctrinally and in terms of its legitimacy.
Abstract: This article argues that environmental regimes entailing considerable administrative discretion are now serving to contextualise and partly to constitute property rights in English law. In particular, rights to use land are ‘democratised’ to varying degrees through the administration of environmental regulation, and are adapted to land-use problems on an evolving basis. In return, property rights affect environmental regulation, through legal protections for property interests, although the nature of the discretion exercised within environmental regimes seems to determine the kind and extent of this symbiotic influence. As a result, environmental law challenges property scholars to reflect on the impact of administrative decision-making on property rights, conceptually, doctrinally and in terms of its legitimacy. At the same time, environmental lawyers need to take seriously the nature and legal treatment of property rights in the application and analysis of modern environmental law.
TL;DR: The authors argue that the law's existing understanding of when consequential responsibility should be imposed on those who assist another's wrongdoing provides a theory and a toolkit whose application can be justifiably extended to the professional regulation of transactional lawyers.
Abstract: Should transactional lawyers bear responsibility when their competent actions facilitate unlawful activity by their client? Or is a lawyer's only concern to act in the client's interest by providing her with the advice and support she seeks? The high profile failure of Lehman Brothers provides a unique opportunity to explore these questions in the context of the provision of a legal opinion by a magic circle law firm. A legal opinion which, although as a matter of law was accurate, was a necessary precursor to an accounting treatment by Lehman Brothers which was described by the Lehman's Bankruptcy Examiner as 'balance sheet manipulation'. The article argues that the law's existing understanding of when consequential responsibility should be imposed on those who assist another's wrongdoing provides a theory and a tool-kit whose application can be justifiably extended to the professional regulation of transactional lawyers.
TL;DR: In this article, two cases brought by aboriginal Australians against the Australian government acquisition of long leases of their land under the Northern Territory National Emergency Response Act 2007 are analysed, and the use of property under the 2007 Act, the legal geographies of the areas subject to the leases and the political potency of property beyond exclusive possession are explored.
Abstract: This article analyses two cases brought by aboriginal Australians against the Australian government acquisition of long leases of their land under the Northern Territory National Emergency Response Act 2007. These leases are conspicuous, particularly in that the government always made it clear that it would not take up its right to exclusive possession of the leased land, and has not done so. The leases have not been used to evict residents, as some feared; nor to pursue mining or agricultural activity. Socio-legal theories centered on the right to exclusive possession cannot account for these leases. The article explores the use of property under the 2007 Act, the legal geographies of the areas subject to the leases and the political potency of property beyond exclusive possession, and suggests an understanding of property as a spatially contingent relation of belonging. Specifically, the article argues that property is productive of temporal and spatial order and so can function as a tool of governance.
TL;DR: The recent decision of the European Court of Human Rights in Ahmad v UK dangerously undermines the well-established case law of the Court on counter-terrorism and non-refoulement towards torture, inhuman and degrading treatment or punishment as discussed by the authors.
Abstract: The recent decision of the European Court of Human Rights in Ahmad v UK dangerously undermines the well-established case law of the Court on counter-terrorism and non-refoulement towards torture, inhuman and degrading treatment or punishment. Although ostensibly rejecting the ‘relativist’ approach to Article 3 ECHR adopted by the House of Lords in Wellington v Secretary of State for the Home Department, the Court appeared to accept that what is a breach of Article 3 in a domestic context may not be a breach in an extradition or expulsion context. This statement is difficult to reconcile with the jurisprudence constante of the Court in the last fifteen years, according to which Article 3 ECHR is an absolute right in all its applications, including non-refoulement, regardless of who the potential victim of torture, inhuman or degrading treatment is, what she may have done, or where the treatment at issue would occur.
TL;DR: In this paper, the authors draw upon Oakeshott's critique to elucidate the risks associated with rationalism in public law and call for a renewed engagement with practical knowledge in the study of the constitution.
Abstract: Rationalism is ‘the stylistic criterion of all respectable politics’. So lamented political philosopher Michael Oakeshott in a series of essays published in the 1940s and 1950s. Rationalism, for Oakeshott, is shorthand for a propensity to prioritise the universal over the local, the uniform over the particular and, ultimately, principle over practice. It culminates in the triumph of abstract principles over practical knowledge in a manner that erodes our ability to engage in political activity. Although Oakeshott’s critique was made with the practice and study of politics in mind, it has a wider relevance. For rationalism, as we see it, has become the dominant style in public law. We draw upon Oakeshott’s critique to elucidate the risks associated with rationalism in public law and call for a renewed engagement with practical knowledge in the study of the constitution.
TL;DR: In this article, the use of enforcement undertakings by the Environment Agency has been examined and the authors argue that the undertakings have significant regulatory implications and give rise to a series of possible problems.
Abstract: Enforcement undertakings have recently been added to the Environment Agency's list of mechanisms available for the enforcement of certain environmental offences. An enforcement undertaking is a written agreement between the regulator and the offender in which the offender proposes to undertake particular actions in relation to the relevant non-compliant activity. This article examines the use of enforcement undertakings by the Environment Agency, arguing that the undertakings have significant regulatory implications and give rise to a series of possible problems. Notwithstanding this, the article concludes that enforcement undertakings possess a number of potentially positive features, making them a useful alternative to existing enforcement mechanisms.
TL;DR: In this article, the authors discuss the discourse on the justified use of force in the Strasbourg Court's analysis of Article 3 and suggest that such discourse can be reconciled with the article's absolute nature.
Abstract: This article discusses the discourse on the justified use of force in the Strasbourg Court's analysis of Article 3. With particular focus on the judgment in Guler and Ongel v Turkey, a case concerning the use of force by State agents against demonstrators, it addresses the question of the implications of such discourse, found in this and other cases, on the absolute nature of Article 3. It offers a perspective which suggests that the discourse on the justified use of force can be reconciled with Article 3's absolute nature.
TL;DR: In this paper, the authors examine the role of external inspection in enhancing the quality of a criminal justice system and reveal that the difference between inspection and other forms of scrutiny activity is largely a matter of emphasis.
Abstract: This article examines the role of external inspection in enhancing the quality of a criminal justice system. It seeks to answer six foundational questions: how should we understand the nature and purposes of criminal justice inspection? what methodologies ought it to employ? who should do it? what values should it respect? how much does it cost? and does it ‘work’? The article reveals that the difference between inspection and other forms of scrutiny activity is largely a matter of emphasis; that the same is true of the difference between inspection and research; that ‘lay’ involvement in inspection can be beneficial; that independence is a core value for inspection, albeit one that is best understood as independence of judgement; that transparency is a further key value but not always honoured; and that evidence that inspection improves service delivery and hence justifies its costs is weak and further research is needed.
TL;DR: This approach best accords with the logic of the principle of title by registration whilst also avoiding a clash with Article 1, Protocol 1 ECHR.
Abstract: Our understanding of the system of registered title is crucial to our understanding of real property in general but there is no consensus as to the best way to interpret ‘correcting a mistake’ in Schedule 4 LRA 2002. This provision should be interpreted to mean that subsequent registrations following a ‘mistaken’ registration are not in themselves a mistake. Section 58 means that the subsequent transferee is relying on good title and a valid transfer and this ought to protect them from rectification. Where an original registered proprietor loses out as a result of this interpretation, they should be entitled to an indemnity however and this requires a change of approach to the interpretation of Schedule 8 LRA 2002. This approach best accords with the logic of the principle of title by registration whilst also avoiding a clash with Article 1, Protocol 1 ECHR.
TL;DR: In this paper, the early effects of regionalisation on access to judicial review and the development of regional markets for legal services in public law are assessed and the early results of an empirical study on the regional use of judicial review are presented.
Abstract: Since April 2009 judicial reviews may be dealt with at regional centres and in Cardiff. This change significantly relaxed the hitherto highly centralised system of judicial review in England and Wales. The main aims were to improve access to public law redress by enabling cases to be listed and heard at the most appropriate regional location. Despite recognition of the need to improve regional access, fears exist that this reform will threaten the standing and authority of judicial review in this jurisdiction; that it will contribute to a fragmentation of judicial review and, in the regions, reduce the quality of public law adjudication, legal advice and representation. Drawing on an empirical study on the regional use of judicial review, this paper assesses these matters and considers the early effects of regionalisation on access to judicial review and the development of regional markets for legal services in public law.
TL;DR: The transition in 2012 from control orders to more ECHR-compliant "terrorism prevention and investigation measures" under the Terrorism Prevention and Investigation Measures Act 2011 is considered in this article, where the authors argue that the interaction between security and liberty over the post 9/11 years has the appearance of a dialogue between courts and the executive that has resulted in a diminution in the repressive character of non-trial based preventive measures.
Abstract: This article considers the transition in 2012 from control orders to more ECHR-compliant ‘terrorism prevention and investigation measures’ under the Terrorism Prevention and Investigation Measures Act 2011. It argues that the interaction between security and liberty over the post 9/11 years has the appearance of a dialogue between courts and the executive that has resulted in a diminution in the repressive character of non-trial based preventive measures. But such an impression, it will be contended, is obscuring the recalibration of ECHR rights that has occurred, easing the path to the introduction of the enhanced version of TPIMs, under the Enhanced Terrorism Prevention and Investigation Measures Bill. The proposed ETPIMs exhibit many of the objectionable features of control orders and are currently ready to introduce if the threat level rises.
TL;DR: The authors examines the approach of the Northern Ireland Court of Appeal during the conflict and concludes that the current system is unsatisfactory as it ignores the effects of the conflict on the appeal process.
Abstract: Despite the vast transitional justice scholarship relating to prisoner release, amnesties and prosecutions when conflicts end, there is a significant gap in practice and the literature regarding wrongful convictions. Uniquely amongst post-conflict societies, Northern Ireland has a body for investigating miscarriages of justice, albeit one designed for �ordinary� appeals. In the absence of a formal truth-recovery process, criminal appeals are becoming a proxy for addressing the role of the state during �The Troubles,� as well as remedying individual injustices. This article examines the approach of the Northern Ireland Court of Appeal during the conflict. It charts the developments in its decision-making following the cease-fires and the establishment of the Criminal Cases Review Commission. It concludes that the current system is unsatisfactory as it ignores the effects of the conflict on the appeal process, and offers no insights into the role of the Court during the conflict. Alternative models are suggested.
TL;DR: In this paper, the European Court of Human Rights examined the question whether dismissal for membership of a political party is compatible with freedom of association under Article 11 of the European Convention on Human Rights.
Abstract: In Redfearn v UK the European Court of Human Rights examined the question whether dismissal for membership of a political party is compatible with freedom of association under Article 11 of the European Convention on Human Rights. The Court endorsed a strong commitment to multi-party democracy and protection of employees against the domination of the employers. This note discusses the judgment and its implications for UK law, looking at three key issues: first, whether the law of unfair dismissal provides effective protection against action that poses a threat to the enjoyment of Convention rights; second, the grounds under which an employer may justify the lawfulness of a dismissal that interferes with a Convention right; third, the available remedies against the employer when there is a breach of a Convention right.
TL;DR: In this article, the European Court of Human Rights has considered the legality of post-tariff detention in the absence of suitable rehabilitative provision and concluded that there would be a violation of Article 5(1) if prisoners were held without access to such provision.
Abstract: The Government has recently abolished Imprisonment for Public Protection, a highly controversial form of indeterminate sentence. Yet, at the time of writing, nearly 6,000 inmates are still serving such sentences, all of whom will have to convince a Parole Board that detention is no longer necessary for the protection of the public. This paper evaluates recent European Court of Human Rights jurisprudence which considered the legality of post-tariff detention in the absence of suitable rehabilitative provision. The Court held that there would be a violation of Article 5(1) if prisoners were held without access to such provision. Consideration is given to the implications of this ruling for those serving such sentences and, more broadly, to the impact it may have on risk-based sentencing policies.
TL;DR: The first consideration by a civil court of the test of capacity to engage in sexual relations is as recent as 2005 as mentioned in this paper, and subsequent cases in the historical context of the way in which the law has constructed the sexuality of persons with intellectual impairment.
Abstract: The first consideration by a civil court of the test of capacity to engage in sexual relations – X City Council v MB, NB and MAB – is as recent as 2005. This article places this and subsequent cases in the historical context of the way in which the law has constructed the sexuality of persons with intellectual impairment. The article argues that, beginning with a series of rape cases in the mid to late nineteenth century, which recognised the concept of consent given through the expression of animal instincts, the law has accepted and deployed a model of intellectual impairment which understands expressions of sexuality in terms of an increasingly unstable opposition between vulnerability and danger, understood as the presence or absence of instinct, and as indicating an underlying ‘monstrosity’. The article argues that the historical continuity apparent in the modern case law is unfortunate and should be rectified.
TL;DR: The authors examines the significance of Geys in the context of the common law of the contract of employment and evaluates whether a number of related issues surrounding the breach and termination of the employment contract have been resolved.
Abstract: If a party to an employment contract commits a repudiatory dismissal or resignation, it has long been unclear whether the other party has the option either to terminate or affirm the contract (the elective theory) or whether the former's breach operates to bring the contract of employment to an end (the automatic theory). The recent decision of the Supreme Court in Societe Generale (London Branch) v Geys has finally resolved this question. By a majority, the Supreme Court held that the elective theory also applies in the context of a wrongful repudiation of the employment contract by express dismissal or resignation. This note examines the significance of Geys in the context of the common law of the contract of employment and evaluates whether a number of related issues surrounding the breach and termination of the employment contract have been resolved.
TL;DR: In this paper, it is argued that the claim arising out of a contract is a non-contractual, unjust enrichment claim governed by the modern law of unjust enrichment, by contrast with a contractual claim for damages or specific performance.
Abstract: Contracting parties sometimes have a claim to recover money paid in advance, or for reasonable payment for work done under the contract, commonly described as restitutionary remedies. This claim arising out of a contract is nowadays generally regarded as a non-contractual, unjust enrichment claim governed by the modern law of unjust enrichment, by contrast with a contractual claim for damages or specific performance. The article argues that the claim is contractual, and that this is relevant to determining when it should be available and what the measure of recovery should be. In particular, it is argued that this follows from the proper understanding of the form of agreement made by contracting parties. The argument involves discussion of doctrinal categories such as contract and unjust enrichment, the relationship between primary and remedial rights in contract, the nature of contractual agreement, and the protection of reliance in contract.