Showing papers in "Modern Law Review in 2014"
TL;DR: In this paper, the authors distinguish between three degrees of nudge and assess the extent to which these can be responded to in positive terms, and the compatibility of nudging with other control devices cannot be assumed.
Abstract: Behaviour change strategies such as ‘nudge’ have become hugely popular with administrations on both sides of the Atlantic. The practice of nudging, however, raises conceptual and controversial issues which must be addressed in examining the conditions under which nudging can be used effectively and acceptably. A key to a clear conceptual understanding of nudge-related issues is to distinguish between three degrees of nudge. These three degrees raise different, and identifiable, concerns and it is possible to assess the extent to which these can be responded to in positive terms. The compatibility of nudging with other control devices cannot be assumed and, when contemplating nudging, it is essential to be transparent about its philosophical basis, as well as to be aware that different modes of intervention may operate with clashes of logic that threaten not only effectiveness but also the serving of representative and ethical ends.
124 citations
TL;DR: In this article, the authors focus on the challenges facing parliaments in particular, and propose a more pro-active and networked role of parliament as countervailing power.
Abstract: Executive dominance in the contemporary EU is part of a wider migration of executive power towards types of decision making that eschew electoral accountability and popular democratic control. This democratic gap is fed by far-going secrecy arrangements and practices exercised in a concerted fashion by the various executive actors at different levels of governance and resulting in the blacking out of crucial information and documents - even for parliaments. Beyond a deconstruction exercise on the nature and location of EU executive power and secretive working practices, this article focuses on the challenges facing parliaments in particular. It seeks to reconstruct a more pro-active and networked role of parliaments - both national and European - as countervailing power. In this vision parliaments must assert themselves in a manner that is true to their role in the political system and that is not dictated by government at any level.
109 citations
TL;DR: In this article, the authors map the multilevel system of governance covering agri-FDI and show how this system creates asymmetric rights in favour of the investor to the detriment of the host state's food security and how these problems might be alleviated.
Abstract: Food security is important. A rising world population coupled with climate change creates growing pressure on global world food supplies. States alleviate this pressure domestically by attracting agri-foreign direct investment (agri-FDI). This is a high-risk strategy for weak states: the state may gain valuable foreign currency, technology and debt-free growth; but equally, investors may fail to deliver on their commitments and exploit weak domestic legal infrastructure to ‘grab’ large areas of prime agricultural land, leaving only marginal land for domestic production. A net loss to local food security and to the national economy results. This is problematic because the state must continue to guarantee its citizens' right to food and property. Agri-FDI needs close regulation to maximise its benefit. This article maps the multilevel system of governance covering agri-FDI. We show how this system creates asymmetric rights in favour of the investor to the detriment of the host state's food security and how these problems might be alleviated.
30 citations
TL;DR: In this paper, it is argued that by focusing on the hate-motivation of many sexual violence offenders, the criminal justice system can begin to move away from its current focus on the sexual motivations of offenders and begin to more effectively challenge the gendered prejudices that are frequently causal to such crimes.
Abstract: This article examines whether crimes motivated by, or which demonstrate, gender ‘hostility’ should be included within the current framework of hate crime legislation in England and Wales. The article uses the example of rape to explore the parallels (both conceptual and evidential) between gender-motivated violence and other ‘archetypal’ forms of hate crime. It is asserted that where there is clear evidence of gender hostility during the commission of an offence, a defendant should be pursued in law additionally as a hate crime offender. In particular it is argued that by focusing on the hate-motivation of many sexual violence offenders, the criminal justice system can begin to move away from its current focus on the ‘sexual’ motivations of offenders and begin to more effectively challenge the gendered prejudices that are frequently causal to such crimes.
20 citations
TL;DR: It is highly unlikely that surgeons will be legally obliged to address their fatigue through the use of cognitive enhancing drugs, despite calls in the philosophical and ethical literature that surgeons and other medical professionals should be morally obliged to take cognitively enhancing drugs.
Abstract: Recently, attention has turned to the possibility of enhancing human cognitive abilities via pharmacological interventions. Known as ‘cognitive enhancers’, these drugs can alter human mental capacities, and in some cases can effect significant improvements. One prime example is modafinil, a drug used to treat narcolepsy, which can help combat decreases in wakefulness and cognitive capacity that arise due to fatigue in otherwise healthy individuals. In this paper, we respond to calls in the philosophical and ethical literature that surgeons and other medical professionals should be morally obliged to take cognitively enhancing drugs. We examine whether surgeons who make fatigue-related errors during patient care might be considered legally obliged to enhance themselves. We focus on liability for a failure to medicate, and conclude that it is highly unlikely that surgeons will be legally obliged to address their fatigue through the use of cognitive enhancing drugs.
19 citations
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TL;DR: The authors examines assumptions within negative approaches to free speech and finds little reason to support the idea that free speech exists primarily when the state is not directly limiting speech, and reframes arguments about free speech should be reframed.
Abstract: Free speech is commonly seen in negative terms as a limitation on government action that restricts speech. Although there have long been arguments that government also has an obligation to act in support of free speech – in part because common free speech rationales appear to involve more than a negative right – much free speech law adopts a negative understanding. This article examines assumptions within negative approaches to free speech and finds little reason to support the idea that free speech exists primarily when the state is not directly limiting speech. On this analysis, arguments about free speech should be reframed. New questions would emerge about what legal limitations and obligations should be applied in the name of free speech and through what methods. The limited recognition given to positive free speech by, for example, the European Court of Human Rights would warrant further development. Free speech would have important positive and negative aspects.
18 citations
TL;DR: The judgment of Leggatt J in Yam Seng Pte Ltd v International Trade Corporation Ltd shows the common belief that the English law of contract does not have a doctrine of good faith to be mistaken as mentioned in this paper.
Abstract: The judgment of Leggatt J in Yam Seng Pte Ltd v International Trade Corporation Ltd shows the common belief that the English law of contract does not have a doctrine of good faith to be mistaken. That law does not have a general principle of good faith, but its doctrine of good faith, articulated through numerous specific duties, is more suitable for the interpretation of contracts according to the intentions of the parties than a general principle which invites the imposition of exogenous standards. That Yam Seng involved a relational contract does not mean that paternalistic exogenous standards should be imposed. It means that the good faith obligations essential even to a commercial contract of this sort must be implied in order to give efficacy to the fundamentally co-operative contractual relationship.
17 citations
TL;DR: In this article, the authors argue that failure to accommodate is better analysed as prima facie indirect discrimination, to highlight the exclusionary effects of non-accommodation on religious minorities.
Abstract: Is there a middle path between the existing case law of the European Court of Human Rights, which rarely requires accommodation of a religious individual's beliefs, and a ‘general right to conscientious objection’, which would exempt religious individuals from all anti-discrimination and other rules interfering with manifestations of their beliefs? The author argues that failure to accommodate is better analysed as prima facie indirect discrimination, to highlight the exclusionary effects of non-accommodation on religious minorities, and that the presence or absence of direct or indirect harm to others (or cost, disruption or inconvenience to the accommodating party) could guide case-by-case assessments of whether the prima facie indirect discrimination is justified. The author then applies a harm analysis to the examples of religious clothing or symbols and religiously motivated refusals to serve others, recently considered by the European Court of Human Rights in Eweida and Others v United Kingdom.
15 citations
TL;DR: In this paper, the assumption that the burden of demonstrating that a limitation of a fundamental right is proportionate rests on the public authority seeking to justify the limitation is challenged, and five categories of cases in which this applies are proposed, and one which has recently been judicially accepted is rejected.
Abstract: This article challenges the assumption that the burden of demonstrating that a limitation of a fundamental right is proportionate rests on the public authority seeking to justify the limitation. After considering the operation of burdens and presumptions in European human rights case-law it notes the difficulties British domestic courts have had in rigorously applying proportionality tests. It suggests that the concerns which lead judges to weaken the requirement of proportionality would be better met by recognising that certain circumstances give rise to a presumption of proportionality, where the burden of demonstrating disproportionality rests on the right-holder. Five categories of case in which this applies are proposed, and one which has recently been judicially accepted is rejected. Clarifying the types of case in which a presumption of proportionality applies is a preferable strategy to blurring the standards of justification to be met by those seeking to limit the enjoyment of rights.1
14 citations
TL;DR: The European Court of Human Rights judgment in Eweida and others v United Kingdom dealt with the increasingly controversial questions of religious symbols at work and the clash between free conscience and anti-discrimination norms as mentioned in this paper.
Abstract: The European Court of Human Rights judgment in Eweida and Others v United Kingdom dealt with the increasingly controversial questions of religious symbols at work and the clash between free conscience and anti-discrimination norms. In a change of approach, it held that the right to resign could no longer be seen as adequate protection for religious freedom and that workplace norms that restrict religious liberty must satisfy a proportionality test. However, it accorded a wide margin of appreciation to States in reconciling freedom of conscience and freedom from discrimination, ruling that the importance of non-discrimination could justify a failure to exempt a religious individual from complying with a policy forbidding discrimination on grounds of sexual orientation.
13 citations
TL;DR: The Defamation Act was passed by Parliament in 2013, and the main changes wrought were reform of the main common law defences, changes relevant to scientific discourse and online speech, and revisions that will impact on process as mentioned in this paper.
Abstract: April 2013, the Defamation Act was passed, the culmination of a four-year political campaign. The legislation is intended to ameliorate the ‘chilling effect’ of libel law on scientists, online commentators, NGOs, and others. This paper considers the main changes wrought: reform of the main common law defences, changes relevant to scientific discourse and online speech, and revisions that will impact on process. It identifies areas where there will be problems of interpretation for courts, and suggests that the Act will fail to provide clarity for publishers keen to assess the legality of their actions. The paper also contends that more attention should have been paid to remedies (in particular, the desirability of discursive remedies such as the right of reply). The question is posed whether the Act addresses the core problem with libel law: the juridification and over-complication of public sphere disputes, and the attendant cost of embroilment in legal proceedings.
TL;DR: In Animal Defenders International v United Kingdom (ADI) as mentioned in this paper, the Grand Chamber of the European Court of Human Rights (the Grand Chamber), having deliberated for over thirteen months, held that the United Kingdom's statutory ban on paid political advertisements in the broadcast media did not breach the free speech rights of an animal rights NGO that wished to broadcast an advertisement publicising the ill treatment of primates in captivity.
Abstract: In Animal Defenders International v United Kingdom (ADI) the Grand Chamber of the European Court of Human Rights (the Grand Chamber), having deliberated for over thirteen months, held that the United Kingdom’s statutory ban on paid political advertisements in the broadcast media did not breach the free speech rights of an animal rights NGO that wished to broadcast an advertisement publicising the ill treatment of primates in captivity.1 The Grand Chamber reached its decision by the slenderest of majorities, 9:8, and in so doing departed from its recent case law on broadcast political advertising. The case raises serious issues concerning the adjudication of freedom of expression cases, and of human rights cases more generally. Some of these concerns will be explored below, following a summary of the factual and legal background to the case.
TL;DR: The UK Supreme Court judgment in R v Gul as discussed by the authors presented a unique opportunity for a judicial appraisal of the definition of terrorism contained in section 1 of the Terrorism Act 2000, which has potentially wide-raging implications for the UK's counter-terrorism measures.
Abstract: The UK Supreme Court judgment in R v Gul presented a unique opportunity for a judicial appraisal of the definition of terrorism contained in section 1 of the Terrorism Act 2000. While the applicant was ultimately unsuccessful in his challenge, the Supreme Court's rejection of the state's argument that reliance on prosecutorial discretion could mitigate certain absurd applications of the section 1 definition of terrorism, eg the labelling of acts of UK or other military forces as terrorist, has potentially wide-raging implications for the UK's counter-terrorism measures. In addition, the powerful obiter dictum arguing in favour of a reform of this definition and a ‘root-and-branch’ review of counter-terrorism legislation is a strong rebuke of recent high profile misapplications of such powers.
TL;DR: In this paper, the authors argue that the distinction between factual and non-factual causation is over-approximation and that factual causation may require value judgment, and that scope of liability often involves an assessment of the strength and nature of the causal connection between breach and harm.
Abstract: According to a dominant view, for the negligent defendant to be held liable for the plaintiff's harm the plaintiff must establish first, that the breach was the ‘factual cause’ of the harm, and second, that the harm is within the ‘scope of liability’. On this view, factual causation is purely factual, while scope of liability is normative and non-causal. This article accepts the basic two-step approach, but argues that the distinction is overstated. A close analysis of the principles shows that factual causation may require value judgment, and that scope of liability often involves an assessment of the strength and nature of the causal connection between breach and harm.
TL;DR: The role of lay magistrates in summary justice has been progressively undermined by protracted processes of reform over the last two decades as discussed by the authors, and while these proposals embody necessary and important areas for reform, taken in isolation they will fail to consolidate the role of magistrates, unless they are enacted alongside other measures which aim to reaffirm the status of lay justices, and which reverse the trend which has prioritised administrative efficiency at the expense of lay justice.
Abstract: The role of lay magistrates in England and Wales has been progressively undermined by protracted processes of reform over the last two decades. Current government proposals aim to reorient and ‘strengthen’ their function through the creation of new magisterial responsibilities such as oversight of out of court disposals and greater involvement with local justice initiatives. This article argues that while these proposals embody necessary and important areas for reform, taken in isolation they will fail to consolidate the role of magistrates in summary justice unless they are enacted alongside other measures which aim to reaffirm the status of lay justices, and which seek to reverse the trend which has prioritised administrative efficiency at the expense of lay justice. Rapidly declining magistrate numbers together with continuous (and continuing) programs of court closures are irreconcilable with the future viability of a lay magistracy.
TL;DR: In this paper, the authors examine the role of the Solicitors Regulation Authority's regulatory framework in the regulation of transactional lawyers and large commercial firms, and argue that the regulatory framework is both unnecessary and insufficient.
Abstract: The regulation of solicitors in England and Wales has undergone great change in the wake of the Legal Services Act 2007. This article considers these regulatory developments through the lens of accountability, focussing on the regulation of transactional lawyers and the large commercial firms. It examines to what extent the Solicitors Regulation Authority's regulatory framework promotes accountability, examining entity regulation, outcomes‐focussed and principles‐based regulation, reporting and disclosure obligations, the Compliance Officer for Legal Practice and the sanctions system. It argues that although transactional lawyers cannot claim the benefit of the ethical principle of non‐accountability, as far as they and their firms are concerned, the regulatory framework is both unnecessary and insufficient. It duplicates the function of accountability to the client and fails to hold transactional lawyers to account for significant regulatory risks that they present, such as the practice of creative compliance.
TL;DR: In this paper, a more nuanced account of the proper role of judges in medical law making is presented, based on Austin's theory of tacit legislation and human rights law, and considerable work is required to incorporate the complexities of hidden law-making into the province of medical jurisprudence.
Abstract: Judges articulate their role in controversial cases of medical ethics in terms of deference to Parliament, lest their personal morality be improperly brought to bear. This hides a wide range of law-making activities, as parliamentary sovereignty is diffused by ‘intermediate law-makers’, and judicial activity is more subtle than the deference account implies. The nature of litigation raises questions about the contributions of other legal personnel and also the nature of the parties' interests in test-cases. While judges demonstrate an awareness of some of these issues and anxiety about the constitutional legitimacy of their work, a more nuanced account is needed of their proper role. This may be built on Austin's theory of tacit legislation. It may draw from human rights law. However, considerable work is required before the complexities of hidden law-making can be properly incorporated into the province of medical jurisprudence.
[...]
TL;DR: The authors argue that idealism is often undesirable, having costs, both pecuniary and non-pecuniary, which are often ignored, and that therefore it is sometimes better if certain torts take place (and are compensated) than if they do not happen.
Abstract: Tort scholars have in recent years defended a ‘traditional’ or ‘idealist’ view of tort law. In the context of negligence this implies that the holder of a duty of care must make an effort not to violate that duty. Idealists contrast this with a ‘cynical’ view that having a duty of care implies a legal requirement to pay damages for breach of that duty. This article defends the cynical view, arguing that it easily explains doctrines supposedly only explicable from an idealist perspective, and that many aspects of tort law are hard to reconcile with idealism. Empirical constraints often make idealism, even if it were desirable, unattainable, and cynicism is therefore the more honest view. The article argues that idealism is often undesirable, having costs, both pecuniary and non-pecuniary, which are often ignored, and that therefore it is sometimes better if certain torts take place (and are compensated) than if they do not happen.
TL;DR: In this article, the authors examine the central changes introduced by the Localism Act as they pertain specifically to housing law in England, namely the new flexible tenancy regime, the changes to homelessness duties under Part VII of the Housing Act 1996 and the reforms concerning the allocation of social housing.
Abstract: In November 2011, the Localism Act was passed and, on one view, reflects the widest-ranging reforms to housing law for over a half century. Ambitious in its stated aims, the legislation was trailed as representing a broad shift in power from central Whitehall to local communities and individuals. The article critically examines the central changes introduced by the 2011 Act as they pertain specifically to housing law in England, namely the new flexible tenancy regime, the changes to homelessness duties under Part VII of the Housing Act 1996 and the reforms concerning the allocation of social housing. The article interrogates the extent to which the reforms realise the stated localist agenda and highlights areas of difficulty in interpretation and application. It concludes that rather than bestowing greater power on local communities, the reforms to housing law will instead effect a perceptible reduction of power in the hands of local people.
TL;DR: In this article, the European Court of Human Rights in Delfi AS v Estonia upheld a decision of the Estonian Supreme Court to impose liability on the owners of an internet news portal for defamatory comments which had been posted on their website by anonymous third parties, and argued that the Court's emphasis on the positive obligation of states to protect this right to reputation may mean that the existing English law in this area, including, potentially section 5 of the Defamation Act 2013, is inconsistent with the ECHR jurisprudence.
Abstract: In October 2013, the European Court of Human Rights in Delfi AS v Estonia upheld a decision of the Estonian Supreme Court to impose liability on the owners of an internet news portal for defamatory comments which had been posted on their website by anonymous third parties. This note suggests that the decision is important in the context of publications with a ‘public interest’ element to them, because it appears to afford more protection to the right to reputation (deriving from the Article 8 right to privacy) and less to freedom of expression than was formerly the case. It is further argued that the Court's emphasis on the positive obligation of states to protect this right to reputation may mean that the existing English law in this area, including, potentially section 5 of the Defamation Act 2013, is inconsistent with the ECHR jurisprudence.
TL;DR: PIP shifts the threshold of entitlement for people with disabilities and it assesses PIP's potential impact on equality and the right to independent living, to whose realisation disability benefits may be expected to contribute significantly.
Abstract: Among the highly significant changes to the benefits system made by the Welfare Reform Act
2012 is provision for a new disability benefit, personal independence payment (PIP). PIP is
replacing disability living allowance (DLA), received by three million people, as the principal form
of state financial support towards disability-related care and mobility costs for those of working
age. The legislation, including regulations prescribing a new disability assessment framework,
plays its traditional role in this field of rationing access to benefit and directing front-line policy
implementation. This article examines how, in the context of the Coalition government?s welfare
reforms, PIP shifts the threshold of entitlement for people with disabilities and it assesses PIP?s
potential impact on equality and the right to independent living, to whose realisation disability
benefits may be expected to contribute significantly. It also considers the impact on disabled
people of other relevant reforms, including the controversial ?bedroom tax?.
TL;DR: In this article, the authors argue that concerns regarding the allocation of property rights to the source generally elide property rights in biomaterials with the right to derive income from the transfer of those materials.
Abstract: Third parties, such as researchers and biotech companies, can and do legally acquire property rights in biomaterials. They are protected by the law of property in their use of these. Recent legal decisions have seen a move towards the tentative explicit recognition of some property rights in biomaterials vesting in the source of the materials. However, this recognition has not included income rights. This article discusses the interests that parties have in controlling the uses of biomaterials and the commercial interests that stem from those uses. The article argues that concerns regarding the allocation of property rights to the source generally elide property rights in biomaterials with the right to derive income from the transfer of those materials. Propertisation does not analytically entail commercialisation. It is therefore questionable whether it is reasonable to protect third parties' income rights, while excluding the source of the biomaterials from such protection.
TL;DR: The authors explored how this system operated and demonstrates that it formed an established part of the legal landscape for many decades, and considered the extent to which a more complete understanding of the historical use of prizes and rewards during the key period of Britain's industrialisation might inform current debates.
Abstract: There has been renewed interest in recent years in using prizes and rewards to promote innovation. History has played a central role in public debates in the UK about the merits of such interventions, with the Longitude Prize 2014 being self-consciously modelled on its eighteenth century precursor. Similarly, historical case studies have been used extensively in the scholarly literature in this area. However, it is striking that there has been little engagement with parliament's role generally in rewarding inventors in the eighteenth and early nineteenth centuries and how this formed part of a broader system of rewards. The article explores how this system operated and demonstrates that it formed an established part of the legal landscape for many decades. It considers the extent to which a more complete understanding of the historical use of prizes and rewards during the key period of Britain's industrialisation might inform current debates.
TL;DR: In this article, the authors explore the notion of "integrity" under copyright law by analysing examples of 'integrity-based objections' in the field of theatre, which typically involve playwrights objecting to changes being made to their copyright works by other parties, such as directors and actors.
Abstract: This article explores the notion of ‘integrity’ under copyright law by analysing examples of 'integrity-based objections' in the field of theatre. These objections typically involve playwrights objecting to changes being made to their copyright works by other parties, such as directors and actors. This analysis is deepened by the use of two concepts from the field of art theory – ‘aura’, as put forward by Walter Benjamin, and ‘trajectory’, as outlined by Bruno Latour and Adam Lowe. Finally, to shed further light on the issues raised, the work of Pierre Bourdieu is used to present new empirical research recently undertaken by the author in the field of UK theatre. This research demonstrates that ‘power struggles’ are a common feature of theatrical collaboration; that copyright is deeply implicated in the way such power struggles are conceived; and moreover, that resolving these power struggles successfully – including taking account of ‘integrity-based objections’ – is crucial to theatrical practice.
TL;DR: In this paper, the authors examine the value of demeanour evidence and whether the majority in R v N.S. was correct that the abrogation of the ability to assess demeanours evidence necessarily undermines trial fairness.
Abstract: The Supreme Court of Canada's decision in R v N.S. is significant because the majority seems to endorse an understanding of confrontation that assumes a defendant's right to a fair trial is imperilled by a witness who seeks to give evidence while wearing the niqab. The case is of interest because it permits reflection upon the interrelationship between the right to a fair trial and the right to confront witnesses enshrined in Article 6 of the European Convention on Human Rights. Given that the European Court of Human Rights conceptualises confrontation in epistemic terms, it is argued that it would be unlikely to find that a conviction based upon evidence from a niqab-wearing witness would infringe the right to a fair trial. This note examines the value of demeanour evidence and whether the majority in R v N.S. was correct that the abrogation of the ability to assess demeanour evidence necessarily undermines trial fairness.
TL;DR: In this paper, the authors identify what needs explaining in the "broad space that lies between the philosophy of property and scholarship about particular legal doctrines" and suggest ways to bridge these gaps in future scholarship.
Abstract: The introduction to Penner's & Smith's edited collection, Philosophical Foundations of Property Law (OUP 2013), sets the ambitious goal of identifying what needs explaining in the ‘broad space that lies between’ the philosophy of property and scholarship about particular legal doctrines. For anyone interested in property theory, or who wants better to understand property doctrines and institutions, this book repays a careful read. Close examination exposes to view not one broad space in the property literature but several. Indeed, perhaps the book’s most significant achievement is to reveal how bifurcated property scholarship is today, along not one but several fissures. The essays in this book sharpen one’s focus on these gaps and suggest ways to bridge them in future scholarship.
TL;DR: The Kinghan report as mentioned in this paper argued that strict liability offers potential advantages in contentious claims against public authorities, providing an incentive for the police to perform their duty to keep the peace while averting the questioning of police decision-making that claims in negligence would inevitably require.
Abstract: The Riot (Damages) Act 1886 imposes a no-fault obligation on police forces to compensate owners of property damaged in rioting. Following the riots across England in 2011 an independent Home Office review, the Kinghan Report, concluded that the fundamental principle of the Act should be retained, while the machinery should be modernised. The Report conceives of the Act as a useful, if highly unusual, compensation scheme that may ease socio-economic problems in riot-prone areas. This article questions that position. Strict liability offers potential advantages in contentious claims against public authorities, providing an incentive for the police to perform their duty to keep the peace while averting the questioning of police decision-making that claims in negligence would inevitably require. The best alternative to negligence liability might not be ‘no liability’ (the general position now at common law), or liability based on ‘serious fault’ (as the Law Commission proposed in 2008), but liability without fault.
TL;DR: In this article, the authors argue that the absence of an overarching policy rationale for this curious example of UK antitrust exceptionalism complicates the determination of whether the reforms, which ostensibly seek to reinforce but potentially also undermine concurrency, are likely to have a positive market impact in practice.
Abstract: The concurrent enforcement power granted to certain sector economic regulators is one of the more remarkable features of UK competition law. In practice, regulators have tended to under- enforce their competition powers, preferring to resolve market difficulties through regulatory interventions. Recent amendments to the concurrency framework, introduced by sections 51 to 53 of the Enterprise and Regulatory Reform Act 2013, seek both to strengthen the priority of competition enforcement and to provide plausible sanctions – including, ultimately, the removal of competition jurisdiction from regulators – for continued underuse. This article assesses these reforms in light of the history and (limited) application of the concurrent competition powers of regulators to date. It argues that the absence of an overarching policy rationale for this curious example of UK antitrust ‘exceptionalism’ complicates the determination of whether the reforms, which ostensibly seek to reinforce but potentially also undermine concurrency, are likely to have a positive market impact in practice
TL;DR: In this paper, the authors argue that this unjust enrichment approach is misguided because it obscures the role of agreement and conflates transfer and exchange, and that a contractual analysis of the case would make the issues clearer and easier to resolve.
Abstract: Benedetti v Sawiris was concerned with the measure of a quantum meruit, and in particular whether a ‘subjective’ or ‘objective’ measure should be preferred. The Supreme Court addressed the issue broadly in line with the approach in the mainstream academic literature on unjust enrichment, according to which this is a problem of how to measure benefit. The article argues that this unjust enrichment approach is misguided because it obscures the role of agreement and conflates transfer and exchange, and that a contractual analysis of the case would make the issues clearer and easier to resolve.
TL;DR: F (Mother) v F (Father) concerned a dispute between parents as to whether or not their 15 and 11 year old children should receive the MMR inoculation, and the decision is problematic in its assessment of the minors' individual medical interests and capacities, and in the significance placed on their views when determining whether inoculation would be in their best interests as discussed by the authors.
Abstract: F (Mother) v F (Father) concerned a dispute between parents as to whether or not their 15 and 11 year old children should receive the MMR inoculation Mrs Justice Theis took into consideration the wishes of both parents and the two ‘intelligent, articulate and thoughtful’ minors and held that inoculation was in their best interests The troubled history of the MMR vaccine and its importance to public health provided the backdrop Whilst the court's efforts to establish the views of the minors are to be commended, the decision is problematic in its assessment of the minors' individual medical interests and capacities, and in the significance placed on their views when determining whether inoculation would be in their best interests