bluuebunny/crossref_metadata_2025 huggingface dataset:
Banking Networks
Authors: Cranston Ross
Published: November 2023

Roy Goode’s legal versatility, and penetrating analysis, are evident in banking as in other areas of commercial law. He has covered the traditional areas such as bills of exchange, letters of credit, and the banker-customer relationship in two editions of Commercial Law and in several illuminating articles. He has also examined modern banking practices: there is the seminal book on payment, Payment Obligations in Commercial and Financial Transactions (1983), his thought-provoking lecture, ‘The changing face of banking and finance: some legal implications’,2 and his most recent work on securities systems.
The ‘Best Practices’ Approach to the Uniformity of International Commercial Law: the UCP 500 and the NAFTA Implementation Experience
Authors: Kozolchyk Boris
Published: November 2023

Roy Goode is a scholar’s scholar and a gentleman’s gentleman. Rarely have devotion to truth, learning, and humaneness blended so well and so wittily. I consider myself fortunate to be his friend and for having shared common research interests for approximately three decades. In 1989, we discussed his justly famous study on formal abstract promises. He and Eric Bergsten had just finished another pathbreaking study on electronic commerce in which he found that despite their economic significance, many of these transactions lacked legislative, administrative, or judicial approval. He asked me whether I agreed with him that it was custom that made these trade association transactions binding.
Models-Based Regulation of Bank Capital
Authors: Scott Hal S
Published: November 2023

American bank regulation has typically been based on a command and control approach. Law-makers or regulators formulate both the regulatory objectives, e.g. safety and soundness, and the means to achieve them, e.g. requiring 8 per cent. risk-based capital with detailed rules of calculation. In contrast, in a system of performance-based regulation, regulators only formulate objectives, leaving to those regulated the choice of how to achieve them. Thus, in various areas of environmental regulation, firms are only told what levels of emission of pollutants are acceptable and are left free to decide how best to meet them.
Universal Participation in Transnational Bankruptcies
Authors: Westbrook* Jay Lawrence
Published: November 2023

It is rare that someone can play the leading instrument or conduct the orchestra, taking one role or the other as the programme requires. It is even rarer that someone is both commanding and beloved. That rare man, Professor Roy Goode, has contributed both scholarly work and leadership central to the internationalization of the field of commercial law.
The Internationalization of Secured Financing Law: the Spreading Influence of the Concepts UCC, Article 9 and its Progeny
Authors: Cuming Ronald C C
Published: November 2023

Secured financing law has traditionally been viewed as an area which is ill suited to internationalization. This attitude was reflected in the 1980 decision of the United Nations Commission on International Trade Law to terminate a project (on which it had spent a great deal of effort and money) designed to develop model uniform rules for secured financing. The Com mission concluded that unification of this area of the law on an international scale was in all likelihood unattainable.2 While there exists no published record of the reasons that led UNCITRAL to this conclusion, it is not difficult to identify at least some of them. Secured financing law is grounded in property concepts some of which are peculiar to particular ‘families’ of law. More significantly, this area of law is perceived as embodying cultural attitudes and public policy choices that vary greatly among states, or subdivisions of states with federal structures. Another factor that is often treated as an impediment to internationalization of secured financing law is its interface with bankruptcy law. It is argued that significant changes in secured financing law are likely to be frustrated unless accommodating changes are made in bankruptcy law.
Reform in the Shadow of Lawyers’ Interests
Authors: Zuckerman A A S
Published: November 2023

At the outset of his interim report, Access to Justice, Lord Woolf stresses that procedure is essential to protecting individual rights and to the maintenance of civilised society. At the same time, he paints a gloomy picture of a system riven by high, disproportionate and unpredictable costs, by undue delays and by excessive complexity.

Lord Woolf considers the ills of cost, delay and complexity to be interrelated and to arise from the uncontrolled nature of the litigation process. He draws attention to the fact that a number of litigation processes have degenerated into expensive and wasteful devices. Discovery is sometimes pursued without any regard to efficiency and economy so that it may consume vast resources for little benefit. Expert evidence, instead of assisting the court, may cause unreasonable delay and confusion at great expense to the parties.
Why Lord Woolf’s Proposed Reforms of Civil Litigation should be Rejected
Authors: Zander Michael
Published: November 2023

Lord Woolf, rightly regarded as one of the great legal figures of the day, has entitled his paper an ‘Interim Report on Access to Justice in the civil justice system in England and Wales’. An official report commissioned by Ministers on this sort of subject would normally present some historical perspective on the issues, a rounded in-depth analysis of the problems, a weighing of options and a conclusion. This is not that kind of report. There is hardly any historical overview, no rounded analysis of the problem, and no weighing of options. But there is very definitely a conclusion.
Making Tracks
Authors: Armstrong Nick
Published: November 2023

The Woolf inquiry into civil justice has brought in its wake a number of buzzwords and phrases. The Interim Report, published in June, is littered with references to ‘increased court management’, the need for a change in litigation ‘culture’, and the concept of ‘proportionality’ between the costs of litigation and the amount at stake. The notion of ‘tracking’, however, is the theme around which all the others revolve.
A Fresh Approach: Uniform Rules of Court
Authors: Greenslade* Dick
Published: November 2023

Lord Woolf’s terms of reference required not only a review of the procedures for civil litigation but also the provision of a new uniform set of rules covering both High Court and county court. Clearly the two aspects are inextricably linked. New procedures require new rules. No new single code is possible until the of differing procedures in High Court and county court are merged.

Perhaps more significantly, procedural changes of the scale proposed by Lord Woolf require a fresh approach to the way in which rules are framed. New rules expressed in more modem form may assist in creating the new culture that is essential if the new approach to civil litigation is to succeed. As stated in the interim report ‘in order to produce a new system with a new ethos, the rules have to be changed in a fundamental ways’ (Chapter 26 para. 2).
The Adversarial Principle: Fairness and Efficiency: Reflections on the Recommendations of the Woolf Report
Authors: Andrews Neil
Published: November 2023

As Lord Woolf records, there have been sixty reports since 1851 dealing with small or large aspects of reform in the fields of English procedure, both civil and criminal. Against this background, when receiving a new report, it seems legitimate to pose two questions: are the proposals contained in the report truly significant; secondly, is the report likely to be implemented? It seems reasonable to say ‘yes’ to both these ‘questions, although the second ‘yes’ is uttered not without regret, as will become clear.
The Government’s Legal Aid Reforms
Authors: Goriely Tamara
Published: November 2023

Since the second world war, British governments have accepted that their responsibilities to provide access to justice do not end with the provision of courts. The state should also ensure that people have the advice and assistance they need to discover their legal rights and, if they choose, pursue legal solutions to their problems.
The Practical Elements of Settlement and Custody
Authors: Christie Fiona , Dosanjh Herdeep
Published: November 2023

This Chapter reviews the practical elements of settlement and custody in preparation for the analysis of legal risks. The settlement framework starts with the settlement and custody of what is defined as first tier custody of immobilised securities and is built from here to include tiers of intermediaries and their Customers.
Concepts of Regulation-The US Model
Authors: Greene Edward F , Braverman Daniel A , Schneck Jennifer M
Published: November 2023

In most countries, the distribution of securities to the public is subject to significant regulation. The United States is no exception. The experience of the early part of this century, culminating in the market crash of 1929, illustrated the dangers in permitting virtually unsupervised sales of securities, often involving unsophisticated investors and unscrupulous or incompetent issuers and other market participants. The resulting lack of confidence in the integrity of the market meant that even legitimate transactions were tainted. The market crash led to radical reform of the regulatory system.
The French View of Cross-Border Securities Offerings ( Aspects of the Modernisation of French Capital Markets)
Authors: Smith Wayne H
Published: November 2023

Not so very long ago the securities markets of Europe were to a large extent isolated from one another. Companies raised nearly all their finance domestically, investors seldom bought significant amounts of foreign securities (with the major exception of British fund managers) and domestic regulations tended to perpetuate this state of affairs.
Liability of Derivatives Dealers
Authors: Scott Hal S
Published: November 2023

The OTC derivatives market is huge. The 1995 International Swaps and Derivatives Association (ISDA) survey indicates that there was $11.5 trillion in contracts outstanding at the end of 1994. This activity has produced, by some accounts, at least 30 multimillion dollar derivative suits in the United States by customers against major securities firms that advised them about derivatives or entered into derivatives transactions with them in the 1990s. Gibson Greetings v. Bankers Trust Co., involved a claim for $32 million in compensatory damages and Proctor & Gamble v. Bankers Trust Co.,2 involved a claim for $195 million. Gibson was settled for approximately $14 million in 1994. The real blockbuster was Orange County Investment Pool v. Merrill Lynch & Co., in which Orange County sued for $3 billion in damages.
Personal rights: Life, freedom and security of the person, privacy, and freedom of movement
Authors: Plessis Lourens M Du , Ville J R De
Published: November 2023

The rights discussed in this chapter are labelled ‘personal rights’. All human rights, in so far as they vest in human beings, are of course ‘personal’. The rights presently under discussion are, however, ‘personal’ because essentially they are entitlements or claims of human beings as constitutional subjects in contradistinction to, for instance, juristic persons.1 The fundamental rights entrenched in Chapter 3 of South Africa’s transitional Constitution can vest in juristic persons ‘where, and to the extent that, the nature of the rights permit’. The personal rights which will now be looked at are rights to which constitutional subjects which are not human beings are as a general rule not entitled (subject to but a limited number of exceptions). These rights are the right to life; the rights to freedom and security of the person; the right to privacy; and the right to freedom of movement.
Property Rights, Land Rights, and Environmental Rights
Authors: Davis Dennis
Published: November 2023

Philosophers, lawyers, and politicians have justified the existence and protection of private individual property almost as often and as vehemently as they have criticized it. The justification of private property was discussed by the Greek philosophers and the classical Roman lawyers, but in a fundamental sense this debate is a typically modem one, especially regarding the inherent tension between the public sphere and the private sphere which underlies it. In this context the problem of property has been described as a clash between two sets of values - the value of liberty and the value of justice.1 According to this view, justice demands equality, whereas liberty requires room for individuality, thereby precipitating a classic confrontation between claims for the equal distribution of property or the promotion of social interests, on the one hand, and for the protection of individual property, on the other.
Family Rights
Authors: Sinclair June
Published: November 2023

Until recently the inclusion of a chapter on family law in a book dealing with constitutional law and a new Bill of Rights would have seemed odd, even inappropriate. The conventional division between public and private law has produced in South Africa a family-law jurisprudence almost devoid of reference to the fundamental human rights of persons qua family members. And it has produced familylaw syllabuses and a body of academic writing largely confined to the explication of the black-letter rules that govern the relationship of family members inter se. The role of the state in according or denying fundamental rights to those members through its statutory regulation of the family has not been challenged. The result has been an overall impoverishment in this field of endeavour.
Devising the Strategy
Authors: Windlesham Lord
Published: November 2023

Well before the Criminal Justice Act 1993 reached the statute book fresh legislation under the rubric of law and order was taking shape. Early in the decade both ministers and officials had anticipated that the successor to the 1991 Act would be legislation arising out of the recommendations of the Royal Commission on Criminal Justice set up immediately after the acknowledgement of the wrongful convictions of the Birmingham Six and the Guildford Four. During the Commission’s lifetime the likelihood of this happening was first diluted and then submerged by a sea change in the climate of public opinion. Reforms in the criminal process aimed at reducing the possibilities for miscarriages of justice in the future were no longer seen as the most urgent priority. While Lord Runciman and the members of his Commission were investigating with great diligence the faults in the structure and operation of the legal system which had permitted such manifestly unlawful outcomes,1 the public perception that crime was getting worse and criminals were getting away with their misdeeds interacted with other factors in determining the political weather.
The Politics of Tactical Withdrawal
Authors: Windlesham Lord
Published: November 2023

A second measure, designed to effect structural changes (‘reforms’ was the word preferred by ministers) in police and Magistrates’ courts services, was published on the same day as the Criminal Justice and Public Order Bill, 17 December 1993. For presentational purposes its unveiling was linked to the more politically attractive proposals to strengthen the penal powers of the courts. Yet the ‘crack-down on crime’ theme was applied to both measures, with Michael Howard claiming that the legislation on the police was intended to help build the close partnership between police and public necessary to fight crime effectively.1 The police would be given clear published objectives, protecting the public and preventing and detecting crime being the top priority. As their full titles implied, both Bills were composite. The Criminal Justice and Public Order Bill dealt mainly with the prosecution and trial process, sentencing, and the prisons, but also created new public order offences. The Police and Magistrates’ Courts Bill had even less integrity in its subject matter, combining in a single statute proposals for the reform of two distinct institutions which public policy had hitherto striven to keep apart: the police service and the Magistrates’ courts.
Populist Pressures and Organized Interests
Authors: Windlesham Lord
Published: November 2023

A century before populist pressures on both sides of the Atlantic became such a potent stimulant to legislation aimed at combating crime, ‘populism’ in America had taken on a more specific meaning. Stemming from the discontent of small farmers at their inability to come to terms with and benefit from the changes sweeping across the agrarian economy in the latter part of the nineteenth century, it developed into an organized political movement. Candidates were nominated for public office, including the Presidency of the United States, but they soon found that converting discontent into votes was another matter. There were some electoral successes, mainly confined to the poor and thinly populated states of the Mid and Far West, and also in the South.1 The movement did not gain support in the industrialized North, and pop¬ulism as a coherent force, standing for the interests of the yeoman farmer against exploitation by men with ‘more power and fewer scruples-land grabbers, railroad tycoons, credit merchants, bankers, middlemen’,2 was short-lived. Yet the rise and fall of the Populist Party was more than a solitary and passing phenomenon. It was early evidence of a strain in the American political culture which sat uneasily with representative democracy and was to surface many times in many different contexts in the century that followed.
Life Sentences: The Defects of Duality
Authors: Windlesham Lord
Published: November 2023

The preceding Chapters have shown the closer degree of control exercised over law-making by the executive branch of government in England than in the United States. As a generalization, it is true to say that ministers dominate the formulation of policy before legislation is introduced. Once proposals are before Parliament, backed by a highly effective system of party discipline, ministers determine its detailed content. When enacted, ministers, or more often officials acting on their behalf, are usually responsible for implementation. In America, by contrast, Congress plays a pivotal role. The President and his Administration may introduce legislative proposals and urge his party’s supporters in Congress to support them. However, the weakness of party discipline and loyalties, and the strength of special interests combine to make it uncertain whether the proposals will be enacted and, if so, in what form. As we have seen, the eventual scope of the Violent Crime Control and Law Enforcement Act of 1994 (Pub. L. 103-322) was markedly different from what it had been on introduction.
Compensation for Victims: A Disorderly Reform
Authors: Windlesham Lord
Published: November 2023

If the inauguration of a new system of criminal appeals was an example of an orderly reform, as measured by the conventional standards of Westminster legislation, the same could not be said of the maladroit way in which policy changes were introduced in providing compensation from public funds for the victims of violent crime. The wry civil service aphorism ‘once something begins to go wrong, it goes on going wrong’ could have been coined to fit the erratic sequence of •events which preceded the passage of the Criminal Injuries Compensation Act 1995.
Economic Pricing Instruments at Community Level
Authors: Ziegler Andreas R
Published: November 2023

Pricing instruments for the establishment of incentives and disincentives concerning ecological behaviour are increasingly important elements of environ mental policy. Economic literature recommends the use of such instruments, while it is sometimes rather sceptical of the use of prohibitions, restrictions, and fixed standards. In the current discussion the proposed instruments are mainly taxes and emission charges, while state aids do infringe to a certain extent the ‘polluter pays’ principle. The Community itself may take such measures under several Treaty provisions.
The Human Face Of Law
Authors: Hawkins Keith
Published: November 2023

This book marks the retirement of Donald Harris as Director of the Socio-Legal Studies Institute, Oxford University. Dr Harris was at the forefront of the move in legal scholarship from traditional black-letter approaches to one supplemented by a socio-legal perspective, making use of the insights of the social sciences. His success can be seen in this unique volume of original essays by some of the most distinguished scholars in this field, all of whom have connections with the Centre. The essays range from an economic analysis of the law, the behaviour of lawyers in the business world, the property and financial consequences of divorce, to current tensions between judges and politicians. All are fused by their achievement in providing a succinct summary of the current state of research while making a considered assessment of future directions.
Law’s Relationship with Social Science: The Interdependence of Theory, Empirical Work, and Social Relevance in Socio-legal Studies1
Authors: Hutter Bridget M , Lloyd-Bostock Sally
Published: November 2023

Contributing to this volume in honour of Don Harris gives us the opportunity to reflect on our work at the Centre for Socio-Legal Studies as part of an exciting period of innovation and development in socio-legal research. Socio-legal studies over the past twenty years has challenged traditional thinking about law and legal theory. Less obviously it has necessitated continuing re-examination of law’s relationship with social science, and the development of new theory at all levels. Don Harris’s style of directorship fostered innovative thinking and gave people the space to follow through their ideas in a genuinely interdisciplinary intellectual environment. Centre research has therefore built on a wide range of theoretical perspectives, disciplines and methodologies, in a variety of legal contexts.2 In discussing socio-legal studies we shall refer principally to Centre work, but it is important to emphasize at the outset that it would be a mistake to attempt to define a Centre ‘school’ of socio-legal studies, or a common Centre view of the relationship between law and social science and the nature of socio-legal research. A consensus would not be found amongst those who have worked at the Centre, nor was the development of such a consensus ever a goal of the Centre.
Doctrine and Practice in Commercial Law
Authors: Cranston Ross
Published: November 2023

The legal doctrines of commercial law are contained primarily in the legislation and decided cases, coupled with the literature of the academic and professional commentators. Those seeking to understand the role of commercial lawyers will not get far without an appreciation (at least in broad outline) of these legal doctrines, for they contain the categories which lawyers invent and which are constitutive of practices and institutions (Cain, 1994, 33). Focusing on the doctrines alone, however, tells only part of the story of how commercial lawyers practise law and the ends they pursue. A case-centred approach-still so common in legal education-misses out, for instance, on those many types of commercial transaction which are rarely litigated. Even if matters are litigated it misses out on the impact of legal decisions, which is often quickly mitigated by lawyers redrafting documents, by deals being restructured on their advice, and by the invention of new legal institutions. Moreover, an over-abundant concern with doctrine neglects the reality that practising lawyers are not devoted to its purity or its rational development. Instead they see it as a malleable resource which can be used instrumentally to achieve their clients’ ends. Innovation and boldness with regard to doctrine are the hallmarks of commercial lawyers, but these qualities are wrapped up in appeals to core societal values such as markets and economic growth.
Property and Financial Adjustment after Divorce in the 1990s-Unfinished Business
Authors: Eekelaar John , Maclean Mavis
Published: November 2023

In 1995, an experienced judge in the English Family Division described his role in a case concerning post-divorce financial provision in these terms: ‘[t]he function of the Family Division judge is not so much to state principles as to reflect the relevant circumstances of the particular case in the discretionary conclusion’, (Atkinson v. Atkinson, 1995).1 The judge did not say that he should not follow principles, and in fact he went on to observe that the ‘authorities do show a broad approach’. Nevertheless, if a judge is not to ‘state’ principles, even byway of recollection and self-guidance, the parties are left with no indication of the basis of the judge’s decision, beyond perhaps an assertion of his instincts for justice. It is not our purpose to revisit the debate over the nature of judicial discretion, about which much has been written (see, e.g., Hawkins, 1992). It is, however, clear that the wide scope allowed in the common law world for judicial bodies to decide how finances should be ordered when married people divorce had been seriously circum-scribed during the early 1990s, and the judge’s statement carries less conviction than it would have done ten years earlier. The reasons for this change lie in events of the 1980s, including the contribution made by socio-legal research. We wish in this Chapter first to consider those events and then to examine the state of the debate on these issues as it stands in the mid-1990s.
Judges, Politics, Politicians and the Confusing Role of the Judiciary
Authors: Stevens Robert
Published: November 2023

All of us owe a great debt of gratitude to Don Harris. A superb scholar, he offered leadership to the Centre for Socio-Legal Studies through a long and difficult period. The fact that the field is so firmly established both in Oxford and in the United Kingdom is significantly his work. He has given so many of us support and encouragement and helped to bring us into the mainstream of legal scholarship. For me, his encouragement, so often related to the role of the judiciary, where the socio-legal field may well be on the brink of important breakthroughs. This study of the current state of relations between the judiciary and the executive is intended as an encouragement to these endeavours.
Holy Communion
Authors: Bursell Rupert D H
Published: November 2023

Many of the ritual and doctrine cases in the nineteenth century and the beginning of the present century were concerned in whole or in part with the Holy Communion Nonetheless, as a number of the questions that were raised also affected other services, they have already been considered For example, the general matter of ceremonies bas already been dealt with as it may impinge upon any service; similarly, notices may have to be given, and sennons preached, other than in the Communion service. This chapter will therefore generally be confined to matters concerning the Holy Communion service itself.
Baptism and Confirmation
Authors: Bursell Rupert D H
Published: November 2023

Baptism provides a ‘legal and valid initiation into the Christian Church’ from which a number of consequences flow In particular, the rubric before the Order for the Burial of the Dead in the Book of Common Prayer states:

Here it is to be noted, that the Office ensuing is not to be used for any that die unbaptized, or excommunicate, or have laid violent hands upon themselves.

It is for this reason that the law relating to baptism has mostly been considered in cases concerning refusals to bury.
Policing Violent Racism
Authors: Bowling Benjamin
Published: November 2023

One of the most contentious issues that the police had to face in the wake of the 1981 disturbances was that they had failed to protect minority communities from violent racism, and that this had given licence to the feeling among the communities which were targeted that they had no choice but to defend themselves. Despite strenuous efforts by the police to deny this charge, this ‘crisis of legitimacy’’persisted well into the second half of the 1980s.
The Decline and Re-emergence of Torture
Authors: Evans Malcolm D , Morgan Rod
Published: November 2023

Torture has recently been the subject of extensive historical scholarship and in the context of this study we need do no more than sketch the main contours of what that scholarship has revealed. Torture appears to have been used in all societies in the ancient world, with the possible exception of the Hebrew people. In the Judaic tradition the practice was regarded as contrary to the ‘law of God’, and this view was perpetuated by leaders of the early Christian church. Elsewhere, how ever, prisoners of war were either slaughtered or taken into slavery, and slavery implied, almost by definition, being subject to torture. This was true of ancient Egypt, Greece, and Rome.
The Prohibition of Torture and Inhuman or Degrading Treatment or Punishment
Authors: Evans Malcolm D , Morgan Rod
Published: November 2023

The prohibition of torture and inhuman or degrading treatment or punishment is probably the most well attested in the entire human rights catalogue. Article 5 of the Universal Declaration of Human Rights (UDHR) proclaims that: No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.
The CPT: Membership, Back-up Services, and Modus Operandi
Authors: Evans Malcolm D , Morgan Rod
Published: November 2023

The newly agreed Convention entered into force more rapidly than had been anticipated. No fewer than 19 of the then 23 member states of the Council of Europe signed the Convention before the end of November 1987, the month that the Convention opened for signature. Two more states signed early in 1988, and the remaining two member states signed in late 1989.
The English Legacy: The Law of Nations and International Law
Authors: Janis Mark Weston
Published: November 2023

How we think about any aspect of the law is largely an inheritance. This book looks to the American discipline of international law, but it begins with the intellectual legacy passed down to us by an English jurist, William Blackstone, and an English philosopher, Jeremy Bentham. Bentham, displeased with the term the ‘law of nations’ as he saw it employed by his teacher, Blackstone, fashioned a new term ‘international law’ in 1789, notably also the first year of US Constitutional government, Washington’s inaugural term as President, and the French Revolution.
Introduction
Authors: Worthington Sarah
Published: November 2023

One of the more pressing problems facing commercial lawyers today is to explain the principles which determine when a remedy is proprietary and when it is not. The issue comes before the courts in many guises. Vendors and purchasers of goods, small-time investors, major banks, and governments alike have all found themselves wanting proprietary, not personal, remedies. Whether such remedies are available remains surprisingly difficult to predict.
Legal Ownership: Retention Of Title Clauses
Authors: Worthington Sarah
Published: November 2023

Legal ownership is such a familiar concept that, inevitably, it is presumed to be well understood. It comes as some surprise, therefore, to find its definition so elusive. Common notions of legal ownership suggest that it involves the right to make physical use of property, the right to obtain income from it and the power to manage it. On this basis, ownership clearly provides effective commercial security. However, none of these incidents—or any other incident commonly associated with owner ship—is either a necessary or a sufficient indicator of the interest. The notion of legal ownership is more subtle. It follows that acquisition of the protection afforded by legal ownership can also be less than clear-cut.
Equitable Ownership: Quistclose Trusts and Related Transactions
Authors: Worthington Sarah
Published: November 2023

Retaining legal ownership, as discussed in the previous chapter., is by no means the only avenue available to commercial parties to secure their interests against the possible insolvency of those with whom they deal. In theory, retaining equitable ownership, rather than legal ownership, could be almost as effective. This possibility—that the parties agree that one will retain equitable ownership of property transferred to the other—is the focus of this Chapter.
Equitable Security Interests: Retained And New Interests
Authors: Worthington Sarah
Published: November 2023

This Chapter concludes the investigation of interests arising by operation of law. Here the focus is on security interests (known as equitable liens) rather than ownership interests. A defendant whose property is subject to a lien cannot be compelled to hand over particular property; nevertheless, the property is bound until the obligation secured by the lien is per formed. The proprietary interest generated is the same as that created by a charge, but it arises by operation of law rather than by agreement between the parties. Such a proprietary interest can greatly enhance the conventional remedies available to contracting parties.
Conclusion
Authors: Worthington Sarah
Published: November 2023

Questions concerning the acquisition and loss of proprietary interests in commercial transactions generate some of the most acute conceptual problems faced by modern lawyers. Familiarity with the issues has not diminished the difficulties. The dramatic increase in commercial dealings in personal property since the Industrial Revolution has been matched by a corresponding increase in the complexity of those dealings. Modem commercial transactions are now commonly expressed in terms of conditional or split ownership and security interests. The status of these arrangements is often a matter of mere conjecture.
Introduction: the Constitutional Importance of Scott
Authors: Tomkins Adam
Published: November 2023

The Scott report1 was the most important constitutional event of the long Conservative period in office. Although that era dramatically ended on l May 1997, the New Labour government and its overwhelmingly New Parliament have much to learn from the old story from which this book has developed.
Iraqgate: The American Equivalent of Scott?
Authors: Tomkins Adam
Published: November 2023

As indicated in the introduction, one of the reasons for studying the Scott story is that it lends itself very neatly to comparative analysis. This is unusual m political scandals, which are more often local and particular, rather than international, in character. But here again, Scott is different. There was an American twist to the Scott story, which this chapter will explore.
Personal Injuries In The Twenty First Century: Thinking The Unthinkable
Authors: Atiyah P S
Published: November 2023

It is one of the functions of the academic lawyer from time to time to think the unthinkable, and to challenge some of the most fundamental assumptions of our legal system. Few assumptions are more basic than the idea that if someone wrongfu11y does you an injury you should be entitled to sue him, and to think of abolishing this right without providing any real replacement is to go about as far as one can in thinking the unthinkable. Yet I want in all seriousness to float the suggestion that the action for damages for personal injuries should largely be abolished, and its replacement left to the free market. I shall also offer some reasons for thinking that the next century may well see some moves in this direction.
Reforming Exemplary Damages: Expansion or Abolition?
Authors: burrows* Andrew
Published: November 2023

When I was appointed to the Law Commission, the topic that I was most dreading taking over from Jack Beatson was that on exemplary damages. Not because I do not find the area interesting. On the contrary, I have long been intrigued by it. But rather because my own published views have taken a markedly different line from that provisionally recommended by the Law Commission in its Consultation Paper Aggravated, Exemplary and Restitutionary Damages. For example in the first edition of Remedies for Torts and Breach of Contract, I wrote the following at the end of Chapter Five on Non-Compensatory Damages: ‘ff]he ideal solution is to reform the law by abolishing exemplary damages altogether. As the House of Lords will probably continue to consider that the authorities are too firmly entrenched for it to overturn them, it is up to the law reform bodies and the legislature to achieve this.’ In the second edition I added the following passage: ‘Unfortunately the Law Commission in its recent consultation paper has provisionally recommended that, while there should indeed be reform, exemplary damages should be retained while being put on a principled basis thereby extending their ambit.
Exceptional Measures of Damages in Contract
Authors: Beale Hugh
Published: November 2023

The recent Law Commission Consultation Paper on Aggravated, Exemplary and Restitutionary Damages raises inter alia the question whether any of these three measures is appropriate in contract actions which do not also involve a tort. As far as contract is concerned, the Law Commission’s provisional recommendation is one of no change. Aggravated damages should be abolished anyway by means of the removal of an exceptional conduct requirement and a strict compensatory model should apply. Exemplary damages should not be available for mere breach of contract. Restitutionary awards should be confined, as the Paper argues they are at present, to cases of contracts between fiduciaries and contracts which are specifically enforceable.
Exceptional Measures of Damages: A Search for Principles
Authors: Cane Peter
Published: November 2023

My role at the SPTL seminar on exceptional measures of damages was that of Reporter. This intimidating job requires one to comment fairly and perceptively on the papers circulated in advance and to give a faithful account of the discussion on the day. On the face of it, the paper which follows performs neither of these tasks. The fact is, however, that in writing it I was greatly assisted and stimulated both by the papers prepared for the seminar and by the discussion which they generated. Yet a third task allotted to the Reporter is that of providing a framework within which the papers and the discussion can be brought into fruitful union. It is primarily this task which I have attempted to perform in this essay.
Meta-bargaining over Property Rights
Authors: Carruthers Bruce G , Halliday Terence C
Published: November 2023

To understand the revision of British and American bankruptcy law, we highlight two kinds of rights and two types of bargaining.1 We distinguish between property rights and jurisdictional rights, on the one hand, and bargaining and meta-bargaining, on the other, and focus especially on how rights and bargaining interact in bankruptcy. We elaborate these distinctions below, but to start a simple definition will help. A legal right is a defensible claim or entitlement. Property rights pertain to things of value: land, machinery, company shares, patents, and the like. They specify who has the right to use an asset. Jurisdictional rights pertain to types of work. They designate who has the right to perform a job and how they acquire that right (through educational qualifications, experience, or state certification).
Professional Innovation and the Recursivity of Law
Authors: Carruthers Bruce G , Halliday Terence C
Published: November 2023

A property rights perspective offers a new way to comprehend the balance of power among corporations and their neighbors in the credit network. Meta-bargaining over property rights, or struggles among players in the political arena, are well exemplified in the field of bankruptcy law, because the stakes are high; statutes on corporate bankruptcy have far-reaching influence on power relationships among all organizations. However, meta-bargaining outcomes rest on two related processes: the dynamics of law-making itself, and the politics of those professions trying to control jurisdictional rights. In socio-legal studies, neither statutory law-making nor the politics of professions in law-making have been well treated.
Restraining the State and Utilities
Authors: Carruthers Bruce G , Halliday Terence C
Published: November 2023

Creditors can enjoy a strong position in bankruptcy and reorganizations by virtue of statutory law. That is, they are legally empowered and prioritized so that their property claims get satisfied ahead of others. We call this dejure strength. But even when their legal position is not especially strong, creditors can exploit other resources in order to gain an advantage inside bankruptcy. They might, for example, use their powerful market position to push ahead of other creditors. This we call de facto strength.
Enabling and Constraining Managers
Authors: Carruthers Bruce G , Halliday Terence C
Published: November 2023

Insolvent companies confront two fates: one leads to closure and corporate death, the other to reorganization and corporate rebirth. If the former occurs, the firm ceases to function as a going concern. Its assets are liquidated and distributed to pay off creditors, and most if not all of its employees lose their jobs. When firms are reorganized, in contrast, they get another chance at life. Not all their assets are liquidated and most workers remain employed. A successful corporate reorganization benefits almost all interested parties. With a return to profitability, shareholders preserve their wealth, creditors get their money back, suppliers retain a customer, and employees keep their jobs. Such success brings political benefits as well. Unlike liquidated firms, corporations that rebound contribute to economic growth and investment, and hold down the rate of unemployment. Successful reorganizations therefore benefit the elected politicians who in modern capitalist democracies are largely held responsible for the state of the economy (see Block 1987).
Jurisdictional Conflicts in the Market
Authors: Carruthers Bruce G , Halliday Terence C
Published: November 2023

Major legal reforms, we have argued, significantly disturbed the division of professional labor. Reformist hopes to save companies and reorganize vulnerable firms required reliable and trustworthy experts, whose reputation and skills would encourage managers and creditors to try rehabilitation before giving up hope of corporate revival (Chapter 7). On both sides of the Atlantic, bankruptcy professionals experienced a meteoric rise in their professional identity, their market position, and the rewards accompanying both. This chapter appraises the role of the bankruptcy reforms in professional upward mobility by focusing on two broad questions.
The Business
Authors: Fehlberg Belinda
Published: November 2023

Mr Upton: I follow her advice. Mrs Upton: No, you never do. That’s your problem. In domestic arrangements, possibly. But not in your business at work; you’ve never followed my advice. The above exchange between Mr and Mrs Upton illustrates the sharp delineation which usually existed in surety households between domestic financial matters and business matters. Thus while in Chapter 4 it was revealed that sureties often had some role in domestic financial decisions, the findings presented in this chapter reveal that the business was overwhelmingly regarded as the province of the debtor. The business as the sphere of the debtor’s decision-making authority is the main theme throughout this chapter.
Lenders and Lawyers
Authors: Fehlberg Belinda
Published: November 2023

This is really a social problem, not a legal problem. (Solicitor 11) In this chapter, ‘public’ (lenders’ and lawyers’) perspectives on providing security are considered. The findings presented in this chapter, together with the findings in Chapter 6 on the more ‘private’ experience of sureties and debtors, reflect the views of all the main parties involved when a surety spouse provides security. Most significantly, Chapters 6 and 7, read together, underline the gap between ‘private’ experiences, ‘public’ interpretations of those experiences, and ‘public’ willing ness to take responsibility for those experiences. This is reflected in the comment of Solicitor 11, above, which implies that because the problems experienced by sureties are a social problem, those concerns are beyond the power of lenders or lawyers to resolve. In this chapter, the main areas addressed are lenders’ descriptions of their procedures for taking security (Part A), and lawyers’ descriptions of their procedures for providing independent ad vice (Part B). From those descriptions, impressions are also gleaned of lenders’ and lawyers’ perceptions of sureties. As the findings reveal, their perceptions are important because they underlie, and have a significant impact upon, the procedures adopted by lenders and lawyers in their dealings with sureties.
Small Claims In The County Courts In England And Wales
Authors: Baldwin John
Published: November 2023

The way that small claims are dealt with has prompted enormous interest in many jurisdictions, yet the subject has been neglected by researchers in this country. We should not doubt the importance of these procedures, however. It is increasingly seen as a convenient expedient in tackling the crisis in civil justice, and with a massive increase in the small claims limit from £1,000 to £3,000 in January 1996, small claims have suddenly become big judicial business. This book (based on research conducted over a two-year period and funded by the Lord Chancellor's Department, the Office of Fair Trading and the Economic and Social Research Council) presents the most extensive empirical research analysis of small claims procedures ever undertaken in this country. The theoretical and practical implications of moves to expand the scope of 'Do-it-yourself' justice are explored. The author had privileged access to the district court judges who conduct claim hearings, and the book is the first to include lengthy extracts from tape recorded interviews with them. It also includes discussion of interviews with litigants, including many who struggled to gain payment of court judgments.
Coercing the Suspect
Authors: Choongh Satnam
Published: November 2023

In England and Wales, as in most other countries, it is the duty of the police to detect crime, apprehend the perpetrators, and gather the evidence necessary to secure their conviction. In order to assist them in fulfilling these duties, the law confers on the police an array of coercive powers which can be exercised against those suspected of criminal involvement. Accordingly, citizens may have their person or premises searched and their property seized, they may be arrested, detained at the police station and interrogated. These powers allow the police considerable scope for exercising their discretion, and this means that powers may be used for purposes other than the simple mechanistic enforcement of the law. The police may, for example, use their discretion not to enforce the law or may simply wish to ensure that their authority is respected by a particular individual or within a given locality. In short, the police may have objectives other than those recognised by the law.
Suspect Narratives
Authors: Choongh Satnam
Published: November 2023

This chapter concentrates on the process and regulation of police interrogation, and presents three arguments. In the first section it is argued that the law allows the police to extract or construct confessions by deploying a variety of persuasive tactics and linguistic strategies which, in combination with the situational pressures placed upon those in custody, can produce unreliable confessions. The second section provides a critical review of the claim that interrogation is essential if crime is to be successfully detected, investigated and prosecuted. It will be demonstrated that the utility of interrogation as a crime control device has, at the very least, been exaggerated. The final section presents the argument that since interrogation is not always vital for crime control purposes, it is at least plausible to argue that it is valued by the police partially because it provides yet another route through which they can discipline and exert dominance over policed individuals and communities.