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Showing papers in "Modern Law Review in 2017"


Journal ArticleDOI
TL;DR: In this paper, a study of some of these cases highlights the need for active and deliberate reflection about the nature of adjudication and the legal reasoning embedded in it when confronted by a disruptive phenomenon like climate change.
Abstract: Climate change gives rise to disputes and problems not easily addressed by existing legal doctrines and frameworks. This is because it is a polycentric problem; the assessment of future climate impacts must deal with uncertainty; climate change is socio-politically controversial; and addressing climate change requires recognising a dynamic physical environment. As such, climate change can be thought of as legally disruptive in that it requires lawyers and legal scholars to reconcile the legal issues raised by climate change with existing legal orders. The legal disruption catalysed by climate change has not only led to the creation of new legal regimes but also given rise to a multitude of legal disputes that require adjudication. A study of some of these cases highlights the need for active and deliberate reflection about the nature of adjudication and the legal reasoning embedded in it when confronted by a disruptive phenomenon like climate change.

62 citations


Journal ArticleDOI
TL;DR: In this article, a conceptual framework for the governance of blockchain-based networks in financial markets is presented, and a vision of how financial regulation and private law should set the boundaries of this new technology in order to protect market participants and societies at large, while at the same time allowing for the necessary room for innovation.
Abstract: Since the emergence of the virtual currency Bitcoin in 2009, a new, Internet-based way of recording entitlements and enforcing rights has increasingly captured the interest of businesses and governments. The technology is commonly called ‘blockchain’ and is often associated with a closely related phenomenon, the ‘smart contract’. The market is now exploring ways of using these concepts for financial assets, such as securities, legal tender and derivative contracts. This article develops a conceptual framework for the governance of blockchain-based networks in financial markets. It constructs a vision of how financial regulation and private law should set the boundaries of this new technology in order to protect market participants and societies at large, while at the same time allowing for the necessary room for innovation.

61 citations


Journal ArticleDOI
Jane Donoghue1
TL;DR: In this article, it is argued that although digital court tools and systems offer great promise for enhancing efficiency, participation and accessibility, they simultaneously have the potential to amplify the scope for injustice, and to attenuate central principles of the legal system, including somewhat paradoxically, access to justice.
Abstract: This article addresses a little discussed yet fundamentally important aspect of legal technological transformation: the rise of digital justice in the courtroom. Against the backdrop of the government's current programme of digital court modernisation in England and Wales, it examines the implications of advances in courtroom technology for fair and equitable public participation, and access to justice. The article contends that legal reforms have omitted any detailed consideration of the type and quality of citizen participation in newly digitised court processes which have fundamental implications for the legitimacy and substantive outcomes of court‐based processes; and for enhancing democratic procedure through improved access to justice. It is argued that although digital court tools and systems offer great promise for enhancing efficiency, participation and accessibility, they simultaneously have the potential to amplify the scope for injustice, and to attenuate central principles of the legal system, including somewhat paradoxically, access to justice.

28 citations


Journal ArticleDOI
TL;DR: In this article, the authors show the weaknesses of an ex post judicial control of pricing techniques and discuss policy tools which could counterbalance consumer biases on which the techniques rely, and discuss how to correct behavioral market failures through more tailored policy choices.
Abstract: Regulators everywhere are confronted with the question of how to react to contractual pricing structures that serve to hide rather than reveal the real cost of goods and services and thereby abuse limitations in the cognitive competences of consumers. Given that sellers/service providers systematically make use of insights from behavioural sciences to refine their manipulative pricing techniques, regulators should also integrate scientific findings on human decision making to correct behavioural market failures through more tailored policy choices. A holistic approach regarding similar problems is still missing in the EU and the issue is often disguised behind a discussion on unfair terms control, which does not serve the purpose of finding a lasting solution. The aim of this article is twofold: first, to show the weaknesses of an ex post judicial control of pricing techniques, and second, to discuss policy tools which could counterbalance consumer biases on which the techniques rely.

27 citations


Journal ArticleDOI
TL;DR: In this paper, the implications of R (Miller) v Secretary of State for Exiting the European Union for the legal principle of parliamentary sovereignty, and argues that the strong restatement of the latter is the most significant feature of the decision.
Abstract: This note addresses the implications of R (Miller) v Secretary of State for Exiting the European Union for the legal principle of parliamentary sovereignty, and argues that the strong restatement of the latter is the most significant feature of the decision. The aim here is to show how traditional principle in the Dicey tradition has been strongly applied against the competing claims of EU law, the royal prerogative, the referendum and devolution. However, the note also argues that the claims relating to parliamentary sovereignty could have produced a different result and that the most compelling feature of the case was the argument that was not forcefully put by the Government, namely that Parliament had already provided sufficient authority for the triggering of Article 50.

16 citations


Journal ArticleDOI
TL;DR: The authors argued that the current legal framework of arbitration in England has developed around the private law paradigm of a commercial dispute involving private actors, which results in a conceptual and legal void in respect of how public interest is accounted for, and protected, in arbitrations involving public bodies under English law.
Abstract: Together with the increase in the number of public-private contracts, recent years have seen a marked proliferation in public-private arbitrations. This article explores the public interest implications which may arise in such arbitrations and examines how public-private arbitration is treated under English law. We argue that, due to the lack of a developed administrative law sphere in England and the historical development of arbitration as an exclusively private mode of dispute resolution, the current legal framework of arbitration in England has developed around the private law paradigm of a commercial dispute involving private actors. This private law paradigm results in a conceptual and legal void in respect of how public interest is accounted for, and protected, in arbitrations involving public bodies under English law. Therefore, we suggest that English arbitration law needs to be amended to adequately protect the private interest in public-private arbitration.

13 citations


Journal ArticleDOI
TL;DR: In this article, the authors look at how cognitive psychology and related disciplines conceptualise consumer decision-making, and how counterintuitive lawyers' approaches appear from this perspective, and demonstrate how, especially when proving confusion, decision-makers in trade mark demand the impossible of empiricists and are simultaneously blind to the weaknesses of other sources of proof.
Abstract: Although consumer responses to signs and symbols lie at the heart of trade mark law, courts blow hot and cold on the relevance of empirical evidence – such as surveys and experiments – to establish how consumers respond to alleged infringing marks. This ambivalence is related to deeper rifts between trade mark doctrine and the science around consumer decision-making. This article engages with an approach in ‘Law and Science’ literature: looking at how cognitive psychology and related disciplines conceptualise consumer decision-making, and how counterintuitive lawyers’ approaches appear from this perspective. It demonstrates how, especially when proving confusion, decision-makers in trade mark demand the impossible of empiricists and are simultaneously blind to the weaknesses of other sources of proof. A principled divergence, without seeking to collapse the gaps between legal and scientific approaches, but taking certain small steps, could reduce current problems of proof and contribute to better-informed, more empirically grounded decisions.

12 citations


Journal ArticleDOI
TL;DR: In this paper, the traditional lawyer's view that the negligence standard belongs to the pliable politics of assignable responsibility has been criticised, and it is argued that basic responsibility is fundamentally strict.
Abstract: This contribution distinguishes two kinds of responsibility: the basic (or ‘metaphysical’) kind that we all inescapably have as functioning human beings; and the assignable (or ‘political’) kind that connects each of us with some particular tasks, and not with others. Having explored some differences between the two, and in particular the role of law's authority in connection with each, the discussion turns to the negligence standard, especially but not only as it figures in tort law. Recently, several philosophers have attempted to find a role for the negligence standard in the metaphysics of basic responsibility. This contribution resists that development and stands up for the traditional lawyer's view that the negligence standard belongs to the pliable politics of assignable responsibility. Basic responsibility, it is argued, is fundamentally strict.

11 citations


Journal ArticleDOI
TL;DR: In this article, the authors examine the reasons for the rising use of prison, in order to assess whether proportionality (or "just deserts") was tried and failed, and argue that in practice the proportionality principle was overwhelmed by other influences, and that deterrence and incapacitation were the main drivers of the increasing use of imprisonment.
Abstract: A leading aim of the Criminal Justice Act 1991 was to install the principle of proportionality as the primary rationale for sentencing and to bring about a reduction in the use of imprisonment. In the decade that followed the prison population in England and Wales rose steeply. This article examines the reasons for the rising use of prison, in order to assess whether proportionality (or ‘just deserts’) was tried and failed. It argues that in practice the proportionality principle was overwhelmed by other influences, and that deterrence and incapacitation were the main drivers of the increasing use of imprisonment. The article goes on to argue that proportionality theories have within them the resources to produce penal moderation, notably the ‘drowning out’ argument, the human rights argument, and decrementalism. The article concludes by rejecting the claim that proportionality theories are likely in practice to result in escalating punishment.

11 citations


Journal ArticleDOI
TL;DR: In this paper, the authors examine concern for fairness in the way in which loss is distributed when a company or financial institution facing financial difficulties is restructured, and show how this concern is often grounded in loose notions of fairness, or generalisations from one situation to another, rather than in detailed analysis.
Abstract: This article examines concern for fairness in the way in which loss is distributed when a company or financial institution facing financial difficulties is restructured. It shows how this concern is often grounded in loose notions of fairness, or generalisations from one situation to another, rather than in detailed analysis. Adopting an interdisciplinary approach, it builds an analytical frame for the fairness debate in debt restructuring. It shows why rigour is important in identifying fairness concerns, in weighing them against other considerations, and in applying concerns which arise in one scenario to another, and illustrates the types of policy mistake or policy incohernece which can arise if this is not done.

10 citations


Journal ArticleDOI
TL;DR: The authors examined public knowledge of rights in key areas relating to consumer, housing and employment law and found that a substantial deficit in individuals' understanding of legal rights and responsibilities, even among those for whom particular rights and responsibility have specific bearing.
Abstract: Over many decades, processes of juridification have brought about huge growth in legal rights, responsibilities and protections, yet citizens appear to poorly understand this ‘law thick’ world. This impacts citizens’ capacity to ‘name, blame and claim’ in the legal domain at a time of retreat from public funding of civil legal services. This article examines public knowledge of rights in key areas relating to consumer, housing and employment law. Drawing on data from the 2010–2012 English and Welsh Civil and Social Justice Survey, the article uses responses to a series of hypothetical scenarios to explore public knowledge of rights and characteristics associated with knowledge. Our findings highlight a substantial deficit in individuals’ understanding of legal rights and responsibilities – even among those for whom particular rights and responsibilities have specific bearing. We also consider what these findings mean for public legal education and the efficiency, efficacy and legitimacy of the law.

Journal ArticleDOI
TL;DR: The authors argue that the protection currently offered to religious beliefs, practices and proselytism by the right to religious freedom cannot be justified by reference to the value of autonomy, which has significant implications for the justification of religious freedom.
Abstract: Courts and scholars across jurisdictions increasingly identify personal autonomy as the primary rationale for the right to religious freedom. But there are tensions between autonomy on one hand, and religious belief, practice and proselytism on the other. This paper will focus on two tensions which have unappreciated implications for religious freedom jurisprudence, particularly that of the ECHR. The first tension stems from the resistance of some religious beliefs to revision. The second stems from the manipulative nature of some modes of religious proselytism. This paper argues that, given these tensions, the protection currently offered to religious beliefs, practices and proselytism by the right to religious freedom cannot be justified by reference to the value of autonomy. This finding has significant implications for the justification of the right to religious freedom.

Journal ArticleDOI
TL;DR: In this paper, the authors argue that recourse to employment tribunals in the United Kingdom has attracted fees of up to £1,200 for single claimants, and that the resulting payoff structures, negative for the majority of successful claimants, strike at the very essence of these rights.
Abstract: Since July 2013, recourse to Employment Tribunals in the United Kingdom has attracted fees of up to £1,200 for single claimants. The impact of this reform has been dramatic: within a year, claims dropped by nearly 80 per cent. This paper suggests that this fee regime is in clear violation of domestic and international norms, including Article 6(1) ECHR and the EU principle of effective judicial protection. Drawing on rational choice theory and empirical evidence, we argue that the resulting payoff structures, negative for the majority of successful claimants, strike at the very essence of these rights. The measures are, furthermore, disproportionate in light of the Government's stated policy aims: fees have failed to transfer cost away from taxpayers, have failed to encourage early dispute resolution, and have failed to deter vexatious litigants. The only vexatious claims, we find, appear to be those which motivated the reforms in the first place.


Journal ArticleDOI
TL;DR: The Social Action, Responsibility and Heroism Act 2015 (SAHA) as discussed by the authors is a troublesome statute that requires that, when considering a claim brought against a defendant in negligence or for breach of statutory duty, the court must assess whether that party was acting for the benefit of society or any of its members, or demonstrated a predominantly responsible approach towards protecting the safety or interests of others.
Abstract: The Social Action, Responsibility and Heroism Act 2015 is a troublesome statute. The Act requires that, when considering a claim brought against a defendant in negligence or for breach of statutory duty, the court must assess whether that party was ‘acting for the benefit of society or any of its members’ (section 2), or ‘demonstrated a predominantly responsible approach towards protecting the safety or interests of others’ (section 3), or was ‘acting heroically’ (section 4). However laudable the Coalition Government's attempts to foster a ‘Big Society’ might have been, this enactment was not the proper vehicle to achieve it. Some provisions merely repeat longstanding common law principles. Others may have been intended to amend the common law to encourage ‘good citizenship’, but fall well short of that aim. And some aspects of the Act's drafting have the (perhaps unintended) potential to sit uncomfortably with established common law negligence principles.

Journal ArticleDOI
TL;DR: In this paper, the authors argue that Kelsen's rejection of the principle of non-contradiction vis-a-vis legal norms reaches to the Kantian edifice of his earlier work and appears, expressis verbis, in his 'Kantian filter'.
Abstract: Two major questions stem from the fundamental shift in Hans Kelsen's legal philosophy that takes place in 1960 and the years thereafter: first, the scope of the shift and, second, its explanation. On the first question, I argue that the shift is not limited to Kelsen's rejection of the applicability of logic to legal norms. Rather, it reaches to his rejection of the entire Kantian edifice of his earlier work. On the second question, I argue that the explanation for the shift has a conceptual dimension as well as a historico-biographical dimension. That is, I argue that Kelsen's rejection of the principle of non-contradiction vis-a-vis legal norms reaches to the Kantian edifice in that the principle was presupposed in Kelsen's earlier work and appears, expressis verbis, in his ‘Kantian filter’. And I argue that certain historico-biographical data are germane, including, quite possibly, the earlier revolution in Kelsen's thought, that of 1939–40.

Journal ArticleDOI
TL;DR: The UK Supreme Court's judgment in the Brexit case, Miller v Secretary of State for Exiting the European Union, was examined in this article, where it was shown that the Foreign Affairs prerogative provided a legal basis for giving notice to EU institutions of the UK's intention to withdraw from the EU.
Abstract: This note examines the UK Supreme Court's judgment in the Brexit case, Miller v Secretary of State for Exiting the European Union. The case upheld the decision of the High Court, which rejected the claim that the foreign affairs prerogative provided a legal basis for giving notice to EU institutions of the UK's intention to withdraw from the EU. But the Supreme Court's preferred basis for dismissing that claim rested on the more general proposition that significant constitutional change can only be effected by statute. This position offers the germs of a jurisprudence of constitutional change and was substantiated by means of an analysis of Parliament's dual capacity as legislator and constituent agent. Miller also includes important and potentially innovative dicta on the relationship between international and domestic sources of law.

Journal ArticleDOI
TL;DR: In this article, the Strasbourg Court started clarifying some unsolved issues in the distinction between direct and indirect discrimination in its case law and finally applied the concept to the much broader area of immigration and citizenship.
Abstract: Prohibiting indirect discrimination has been hailed as guaranteeing substantive equality by addressing issues of structural discrimination and inequalities in a way that direct discrimination cannot and will not. However, Article 14, the ECHR's non-discrimination provision, does not distinguish between direct and indirect discrimination. Only in 2007 the European Court of Human Rights explicitly included the notion of indirect (race) discrimination under Article 14 in DH and Others v Czech Republic, its famous judgment on Roma education segregation. Since then it has applied the prohibition of indirect race discrimination in a limited manner to similar education cases. However, in its recent Grand Chamber decision, Biao v Denmark, the Strasbourg Court started clarifying some unsolved issues in the distinction between direct and indirect discrimination in its case law and finally applied the concept to the much broader area of immigration and citizenship.

Journal ArticleDOI
TL;DR: In this paper, the authors make use of the Latin phrase "Follow a fortiori" from certain premises to argue that the conclusions of a judge do not just follow, but follow a Fortiori.
Abstract: Courts and lawyers often argue a fortiori. Sometimes they actually use the Latin phrase to indicate that their conclusions do not just follow, but ‘follow a fortiori’ from certain premises. These are taken to be inferences of a distinct and important kind. But how exactly are they distinct, and why are they important? Despite their popularity, a fortiori arguments are not well understood and have not drawn much attention from legal theorists. This paper pursues two goals. The first is to bring out the form of a fortiori arguments, articulating those assumptions that, though typically left unstated, are necessary elements of arguments of this kind. The second goal is to say something about the point of such arguments, and to characterise the sort of context in which an arguer will have reason to deploy an a fortiori rather than an inference of a different type.

Journal ArticleDOI
TL;DR: In this article, the authors examine the implications of the Conservative Party's proposal to replace the HRA with a British Bill of Rights, with the aim of breaking the link between domestic courts and Strasbourg.
Abstract: The Conservative party has repeatedly pledged to replace the HRA with a British Bill of Rights, with the aim of ‘breaking the link’ between domestic courts and Strasbourg. This article examines the implications of this proposal, the nature of the current relationship with the European Court, and the extent to which the link has already been weakened. It considers the bases of the Conservative proposal, and the options available in breaking that link in a Bill of Rights, taking account of the potential introduction of limitation clauses and the possibility of according Strasbourg judgments against the UK an advisory status only. Finally, taking account of the European Court's recent movement towards ‘enhanced’ subsidiarity, it will examine the consequences for the protection of human rights of reliance on a Bill of Rights intended to be interpreted and applied independently of Strasbourg influence.

Journal ArticleDOI
TL;DR: A comprehensive and critical analysis of Heinze's book Hate Speech and Democratic Citizenship (Oxford University Press, 2016) can be found in this paper, where the authors argue that the requirements of democracy are hypothetical, rather than categorical, imperatives.
Abstract: This article offers a comprehensive and critical analysis of Eric Heinze’s book Hate Speech and Democratic Citizenship (Oxford University Press, 2016). Heinze’s project is to formulate and defend a more theoretically complex version of the idea (also defended by people like Ronald Dworkin and James Weinstein) that general legal prohibitions on hate speech in public discourse compromises the state’s democratic legitimacy. We offer a detailed synopsis of Heinze’s view, highlighting some of its distinctive qualities and strengths. We then develop a critical response to this view with three main focal points: (1) the characterisation of democratic legitimacy as something distinct from (and whose demands aren’t identical with those of) legitimacy per se; (2) the claim that the requirements of democracy are hypothetical, rather than categorical, imperatives; and relatedly (3) the question of how we should reconcile the requirements of democratic legitimacy with the costs that may follow from prioritising democratic legitimacy. We argue that there are significant difficulties for Heinze’s account on all three fronts.

Journal ArticleDOI
TL;DR: In this article, the authors examine the EU's polity crisis in the context of the development of a distinctive modern conception of secular constitutional authority, focused on the ideal of sovereign self-determination.
Abstract: The political constitution of the European polity has become strained in recent years by insistent pressures on its institutional capacity to resolve social problems. The article examines the EU's polity crisis in the context of the development of a distinctive modern conception of secular constitutional authority, focused on the ideal of sovereign self-determination. As the work of Neil MacCormick illustrates, the EU provides a radical challenge to the on-going capacity of the concept of sovereignty to provide a framework to address problems of legitimacy. The article explores the nature of this challenge, its historical context and its consequences with reference to debates over the nature of constitutional pluralism. It sets out a path to the renewal of the European constitutional debate through a re-consideration of secular constitutional authority and the necessity of its connection to the idea of sovereignty. The article seeks to re-engage in the task of ‘questioning sovereignty’.

Journal ArticleDOI
TL;DR: This paper explored the circumstances in which the European Court of Human Rights imposes a positive obligation to criminalise and pursue criminal forms of redress, and concluded that the Court's doctrine carries the potential of both coercive overreach and dilution of the right to life itself.
Abstract: What is the relationship between the right to life and criminal liability, and what should it be, given the significance we rightly attribute both to human life and to human freedom? This article explores the circumstances in which the European Court of Human Rights imposes a positive obligation to criminalise and pursue criminal forms of redress, and concludes that the Court's doctrine carries the potential of both coercive overreach and dilution of the right to life itself. These problems are compounded by opacity in the Court's doctrine. I propose a way forward that takes both the right to life and human freedom seriously.

Journal ArticleDOI
TL;DR: The Housing and Planning Act 2016 (HPA) as mentioned in this paper was the first purely Conservative government intervention on housing in England since the 1990s, with the stated aim of increasing rates of homeownership.
Abstract: In May 2016 the Housing and Planning Act 2016 became law, the first purely Conservative government intervention on housing in England since the 1990s. This article examines the Act's key provisions pertaining to social housing and the government's stated aim of increasing rates of homeownership. The Act, through the Starter Homes Scheme, extension of the right to buy to housing association tenants and changes to security of tenure in the social sector, has been heralded as a ‘landmark’ piece of legislation. This article scrutinises these policy measures and assesses their effectiveness and likely impact. It is contended that the Act exposes the government's promotion of homeownership above all other housing tenures. The article further explores the deep moralisation at the heart of the homeownership narrative and the intensification in the residualisation of social housing in England which, it is argued, is the inevitable consequence of the reforms.

Journal ArticleDOI
TL;DR: The recent case of Eclairs Group Limited v JKX Oil & Gas plc highlights the pressures faced by company directors in change of control situations, in which they may be tempted to take action to prevent or discourage such change.
Abstract: The recent case of Eclairs Group Limited v JKX Oil & Gas plc highlights the pressures faced by company directors in change of control situations, in which they may be tempted to take action to prevent or discourage such change. The Supreme Court decision provides important clarity on the scope of the proper purpose rule in these (and other) situations. We explore the implications of different judicial interpretations of the proper purpose rule for the autonomy of directors in their decision-making. We do this by focusing on the scope of the proper purpose rule, whether a subjective or objective test is employed in the application of the rule and the test for causation where a director is motivated by mixed purposes.

Journal ArticleDOI
TL;DR: In this article, the Court of Appeal allowed Foakes v Beer to be killed off via equity by moving away from the suggestion in Collier v P & M J Wright (Holdings) Ltd that an agreed part-payment of a debt by a debtor will always raise an estoppel preventing the creditor from demanding the remainder of the debt.
Abstract: In MWB Business Exchange Centres Ltd v Rock Advertising Ltd the Court of Appeal held that when an ongoing contract is varied so that one party's obligation to pay money is reduced, the variation is binding as long as the other party receives a practical benefit. In doing so, the Court of Appeal effectively confined the rule in Foakes v Beer to one-off payments. This raises serious questions about the continued survival of Foakes v Beer. On the other hand, the Court of Appeal ensured that Foakes v Beer would not be killed off via equity by moving away from the suggestion in Collier v P & M J Wright (Holdings) Ltd that an agreed part-payment of a debt by a debtor will always raise an estoppel preventing the creditor from demanding the remainder of the debt.

Journal ArticleDOI
TL;DR: In International Energy Group v Zurich Insurance, the Supreme Court considered the implications of the special rule in Fairchild v Glenhaven Funeral Services Ltd for insurers for employers liability, and recognised that the insurers were entitled toitable recoupment from insured employers in respect of periods during which they were uninsured.
Abstract: In International Energy Group v Zurich Insurance, the Supreme Court considered the implications of the special rule in Fairchild v Glenhaven Funeral Services Ltd for insurers’ for employers’ liability. The question for the Court was whether, in the light of its earlier decision in Durham v BAI (Run off) Ltd, insurers could be held liable for employees’ mesothelioma claims, even if the employer was not insured throughout the period of employment. The seven Justices unanimously held that insurers’ liability was proportionate to the period of insurance. In reaching that result, the majority recognised that the insurers were entitled to ‘equitable recoupment’ from insured‐employers in respect of periods during which they were uninsured. This note critiques the recoupment right with an unjust enrichment lens.

Journal ArticleDOI
TL;DR: The authors deconstructs the distinction between an executive body's discretion to make policy choices and its discretion when conducting technical assessments and proposes a public-interest-regarding conception of discretion where, in an institutional context where courts' reviewing role may be limited, discretion's relationship to law is a matter of how legal norms may operate in the spheres of discretion that they attribute to decision-makers, rather than how courts may review an exercise of discretion.
Abstract: Against the background of the reinforcement of the EU executive pursuant to the post-2008 economic and financial market regulatory reforms, this article deconstructs the prevailing distinction between an executive body's discretion to make policy choices and its discretion when conducting technical assessments. This distinction, which arises out of the current judicial paradigm for discretion, has contributed to the re-allocation of executive authority within the EU (sanctioned in UK v Parliament and Council and Gauweiler v Deutscher Bundestag). The article traces the distinction's roots in legal conceptions that have shaped legal-administrative thinking since the early days of the Etat de Droit or Rechstaat. It proposes a public-interest-regarding conception of discretion where, in an institutional context where courts’ reviewing role may be limited, discretion's relationship to law is a matter of how legal norms may operate in the spheres of discretion that they attribute to decision-makers, rather than how courts may review an exercise of discretion.

Journal ArticleDOI
TL;DR: The authors examines how the Judicial Committee of the Privy Council makes constitutional comparisons between related constitutions that are or were within its jurisdiction, deploying its own precedents, as a pragmatic method of resolving idiosyncratic questions that arise across multiple constitutions.
Abstract: This article examines how the Judicial Committee of the Privy Council makes constitutional comparisons between ‘related’ constitutions that are or were within its jurisdiction, deploying its own precedents, as a pragmatic method of resolving idiosyncratic questions that arise across multiple constitutions. In particular, it considers the Committee's approach to the longstanding question of the interpretation of the opening section of Caribbean constitutional bills of rights, which has far reaching implications for the scope of constitutional protection of human rights. The JCPC's answer over time to this question reveals the fault lines for this supranational constitutional court as its jurisdiction peters out yet remains. The gaze of comparativism is very harsh as older constitutions are evaluated in light of newer ones and also as fossilised constitutional interpretations presented in earlier JCPC cases where the Committee no longer has jurisdiction are given new life in contemporary cases.

Journal ArticleDOI
TL;DR: In this article, the relationship between the relatively new consumer redress provisions in the Consumer Protection from Unfair Trading Regulations 2008 and general law principles is investigated by considering the interactions between these two bodies of law.
Abstract: © 2017 The Author. The growth of statutory consumer protection regimes in modern commercial societies has the potential profoundly to disrupt the private law landscape. Such schemes aim to increase access to justice for consumers by offering simplified and clear suites of rights and corresponding remedies. In so doing, however, they affect core areas of private law rights and remedies, and may come to undermine or replace existing contractual principles and policies. The result could be an incoherent system of private law with different principles and rules applying to commercial and consumer transactions. Coherence in the law requires that lawyers abandon their traditional ‘oil and water’ attitudes to legislative schemes and confront directly the interactions between these two bodies of law. This paper engages in that enquiry by considering the relationship between the relatively new consumer redress provisions in the Consumer Protection from Unfair Trading Regulations 2008 and general law principles.