bluuebunny/crossref_metadata_2025 huggingface dataset:
The Treaty of Union: more hints of constitutionalism
Authors: Edwards Denis J.
Published: April 2006

The Court of Session decision in Pringle, Petitioner again raises the issue of what constitutional effect, if any, is to be attributed to the Treaty of Union between Scotland and England. Specifically, is it competent for the Court of Session to find that an Act or a provision in an Act of the United Kingdom Parliament is invalid because of an inconsistency with an Article of the Treaty of Union as enacted in Scots law by the former Scottish Parliament in the Union With England Act 1707 (c 7)? This is the first case since MacCormick v Lord Advocate in which the Inner House of the Court of Session has commented on this favourite question of Scottish constitutional lawyers and, although hardly answering the question any more revealingly than it did in that case, the court's latest reservation of opinion on the answer is worthy of some further discussion.
A nasty measure – Part I Landlord and Tenant Act of the 1987
Authors: Smith P. F.
Published: April 2006

In October 1985, the Nugee Committee produced a well-received Report. It drew attention to a number of diverse problems relating to the management of leasehold flats, most especially those faced by lessees. These were said to include excessive delays in carrying out repairs, complaints as to the level of service charges and difficulties in the enforcement of lessors' obligations. It goes without saying that the slow and inevitable structural deterioration which inevitably takes place as a building ‘ages’ will risk being accelerated by any dilapidations caused by the neglect ofthe lessor regularly to comply with his repairing obligations. In this and similar circumstances of mismanagement (such as a failure regularly to collect service charges) the value, credit-worthiness and saleability of the lessees' interests are all put at risk.
The legal response to pregnancy
Authors: Morris Anne , Nott Susan
Published: April 2006

Advocates of the legal equality of women and men must, sooner or later, address the issues raised by the biological differences between the sexes. Even those who would argue for a completely sexually egalitarian society which does not recognise differences based on sex cannot avoid this issue. Women are child-bearers: this a a biological fact. They are also perceived as child-rearers: a view with origins that are clearly more complex than mere biology. These particular functions have an impact on all aspects of a woman's life within and outside the home. In the workplace pregnancy is treated as a deviation from the male norm or as the price to be paid by the employer for employing women. It is women who are expected to make concessions and it is unsurprising that the claim has been made that ‘the heart of woman's oppression is her child-bearing and child-rearing role’.
The capacity for recklessness
Authors: Field Stewart , Lynn Mervyn
Published: April 2006

It is clear that several members of the judiciary are unhappy about some of the moral implications of Caldwell recklessness. In particular, there is concern about the accused whose capacities, mental or physical, are appreciably more restricted than those of the ordinary person. Such person may not just fail to foresee risks obvious to rcasonable people, they may plausibly be seen as being incapable of so doing. Judicial anxiety about this first surfaced in Elliott v C. There, the Queen's Bench Divisional Court allowed a prosecution appeal against the acquittal of a 14 year old girl (who was in a remedial class at school) for the criminal destruction of a garden shed and its contents.
Saving the environment — does utilitarianism provide a justification?
Authors: Carr Indira Mahalingam
Published: April 2006

There is an increasing awareness of the need to save man's environment for current and future generations, both on the part of governments and of the populace generally. This has resulted in a number of enactments, both national and international, which purport to protect the environment in a number of ways - by controlling, for instance, the release of pollutants into the atmosphere, the dumping of waste products in the sea, the killing of marine life, the export of endangered species and so on.
The reinvention of American legal realism
Authors: Duxbury Neil
Published: April 2006

While much has been written about American legal realism, the nature of its decline is comparably less carefully documented. Jurisprudential lore has it that ‘we are all realists now’. Although it is far from clear who ‘we’ might be, the statement is commonly taken to mean at least three things: that academic and practising lawyers alike have heard and heeded the message that law is not a certain system of rules; that legal doctrine is nowadays conceived in the context of the wider legal process; and that the legal process is nowadays understood to be part of the wider social system. The supposition, in essence, is that modern lawyers think like realists, even if they do not commonly consider themselves to be realists. While the weaker ideas and arguments developed by so-called realists have been discarded, the better ones have been absorbed into modern legal thought.
The detention of suspected terrorists in the British Islands
Authors: Walker Clive
Published: April 2006

Ever since November 1974, when the Home Secretary, Roy Jenkins, announced his ‘Draconian’ Prevention of Terrorism Bill, strong emotions have been aroused by the legislation. On the one hand, ardent supporters claim that the Acts have been ‘increasingly useful and necessary for the police’ and ‘the most powerful weapon in our counter-terrorist armoury’. On the other hand, there have been strident critics who not only denounce the Acts as a ‘flagrant violation of basic civil liberties’ but also support ‘the struggle against British imperialism [even if it] inflicts violence on citizens and can have tragic consequence’. This clash of opinions has persisted during the most recent re-enactment of the legislation in Parliamentary session 1988–89.
Reservation of title in England and New Zealand
Authors: McCormark Gerard
Published: April 2006

Reservations of title clauses have enjoyed mixed fortunes in recent times at the hands of the courts in Britain. On the one hand, the House of Lords has upheld the validity and effectiveness of an ‘all-liabilities’ reservation of title clause. On the other hand, claims on the part of a supplier to resale proceeds have been rejected in a string offirst instance decisions. Reservation of title has however been viewed more favourably as a phenomenon in New Zealand. In the leading New Zealand case Len Vidgen Ski and Leisure Ltd u Timam Marine Supplies Ltd. a tracing claim succeeded. Moreover in Coleman u Harvey the New Zealand Court of Appeal gave vent to the view that the title of the supplier is not necessarily lost when mixing of goods, which are the subject matter of a reservation of title clause, has occurred. There are now a series of more recent New Zealand decisions, some of them unreported, dealing with many aspects of reservation of title.
Knowing assistance—a plea for help
Authors: Norman Helen
Published: April 2006

The recent refusal by the Appeal Committee of the House of Lords to grant leave to appeal to their Lordships' House in the case of Agip (Africa) Ltd v Jackson means that an opportunity has been lost to clarify the law with regard to the liability of a third party who helps a fiduciary commit a breach of trust. The difficulty is further compounded when one bears in mind that the ultimate appeal in Lipkin Goman v Karpnale did not involve one of the original defendants, Lloyds Bank, whose liability for enabling the gambling-addicted solicitor to sustain his predilection by cashing cheques for him was considered only by Alliott J and the Court of Appeal.
Quia modus et conventio vincunt legem, rent reviews rightly require timeous ‘triggering’
Authors: Goldberg G. D. , Smith P. F.
Published: April 2006

In leases it is not uncommon to make provision for periodic reviews of the rent and to impose on a lessor, who wishes to take advantage of such a provision, the necessity of his initiating, or ‘triggering’, the review by a notice served on the lessee at or before a certain date or within a certain period. In this article, we respectfully submit the House of Lords to have mistaken the nature of such impositions; and that it is because, and only because, of that mistake that the House has held such time limits to be, in the absence of the grossest indications to the contrary, merely ‘directory’ and so freely to be disregarded by lessors.
The European law school
Authors: Goode Roy
Published: April 2006

The impending arrival of the Single European Market and the consequent drive towards European legal integration raise in stark form the future role of the national law school. Should we continue to have national law schools at all, in the sense of law schools with a predominantly national focus? Or should we move towards a system in which the typical law school, though located in a particular country within Europe, encompasses a structure, a body of staff and students and a curriculum which are a national and which focus on European laws and institutions rather than on those of the particular home State? I-f law schools are to retain their essentially national character, how should the growing influence of European law in general and Community law in particular affect their role, organisation and activities?
Old enough to know best?
Authors: Bridgeman Jo
Published: April 2006

Are there now any circumstances in which a teenage may effectively withhold her consent to medical treatment? By effectively, I mean not only that she can refuse to consent to treatment but also that this refusal is respected and the treatment prevented.

Consent to medical advice and treatment, the givingofwhich means that a doctor does or does not commit a battery (criminal or civil) on her patient, necessarily involves both the giving of consent and the withholding of consent. Without one the other has no meaning.
A third survey of university legal education in the United Kingdom
Authors: Wilson John
Published: April 2006

The second survey of legal education was published in July 1975 and was based largely on information gathered during the academic session 1973/74. At that time, the decision was taken to present the material in tabular form in order that the report could provide a framework for the future publication, at suitable intervals, of supplements containing appropriate up-dated tables. In pursuance of this objective, supplements were published in 1978 and 1981 with statistics drawn largely from sessions 1976/77 and 1980/81 respectively.

Developments since 1981 now justify the undertaking of a more thorough review with the object of producing a third survey report.
Agents without principals: pre-incorporation contracts and section 36C of the Companies Act 1985
Authors: Griffiths Andrew
Published: April 2006

The problems associated with pre-incorporation contracts are due to the essentially artificial nature of a company’s existence and personality. The existence of a company, unlike that of a natural person, is not something which can be readily ascertained but is a matter of legal formality. There is a good case for treating pre-incorporation contracts as sui generis, but until 1973 their legal effect was governed by common law principles of contract and agency which drew little distinction between companies and natural persons. The result was unsatisfactory and widely criticised, one commentator remarking that ‘it is rare to hear such a widespread and common opposition against any aspect of English company law’. Section 9(2) of the European Communities Act 1972 (now to be found in s 36C of the Companies Act 1985) made a partial reform of this law, but did not deal with the inability of a newly formed company to ratify or adopt a pre-incorporation contract made on its behalfeven though this was a major deficiency of the common law.
Character merchandising and the limits of passing off
Authors: Catty Hazel
Published: April 2006

The tort of passing off developed as an offspring of deceit, with the twist that it allows trade rivals, rather than deceived customers, to sue. The classic case is a trader ‘passing off his goods as the goods of somebody else: the defendant is liable for misrepresenting, innocently or otherwise, that his goods are the goods of somebody else. The plaintiff is the trader whose trade is thereby diverted or whose reputation is thereby harmed.

The classic case thus involves a misrepresentation as to the source of the goods. However, case law has shown that this is not the only relevant misrepresentation on which the tort can be founded
The educative ambition of Law and Literature
Authors: Ward Ian
Published: April 2006

In 1979, Allen Smith suggested that there was to be a ‘coming renaissance’ in Law and Literature as a teaching discipline. In fact, Law and Literature had already arrived. In 1973, James Boyd White had publishedhis The Legal Imagination, and had geared it primarily to the teaching and study of law. Of the many intriguing characteristics of the Law and Literature movement, one of the most exciting and most valuable, is the fact that, unlike many other theoretical approaches to the problems of law, the ambition of Law and Literature is firstly educative, and only then, secondly, social and political. Moreover this secondary ambition, has tended, in two senses, to be appended to the educational ambition. In one sense, it is additional in that the political manifesto is supposed to emerge from the educational force of literature. In a second sense, it is additional because politics was certainly not such a ranking ambition in the earliest days of the Law and Literature movement, and it is no concidence that the politicization of Law and Literature has come about as its star has risen, whilst that of Critical Legal Studies has declined
Oedipus Lex: Slips in interpretation and law
Authors: Goodrich Peter
Published: April 2006

This essay addresses a perennial theme within the doctrine of common law. It is that of the Englishness of English law or alternatively, as Nietzsche once remarked, the lawfulness of being English. It is, ofcourse, a well-known and ironic historical fact that English law is a rather confused form oflocal French Law. The most obvious feature ofcommon law has been that for most of its history, it was recorded in Latin and argued and reported in a species of French. When William Camden sought to identify the most distinctive characteristic of the inhabitants of the Island Britannia, the only thing he could find about the origin of the word Britain was the ancient Gallic practice of painting the body with woad: ‘Brith… signifies anything that is painted and coloured over.’
Estoppels over land and third parties. An open question?
Authors: Baughen Simon
Published: April 2006

The proprietary status of the contractual licence has long been a matter of dispute. In Arnold v Ashbum–Anstult the obiter remarks of Fox LJ signalled a return to orthodoxy in this area of the law. Unless a contractual licence can be supported by facts sufficient to support a constructive trust (and these, too, were restrictively defined by Fox LJ), it will not bind third parties. However, Fox W did not discuss rights over land arising by way of estoppel ( ‘estoppel rights’). The proposition that these can bind third parties has never attracted the controversy that surrounded the proprietary status of contractual licences. Nonetheless, due to the potential overlap between the two types of licence, it is a proposition that needs urgent re-evaluation in the light of Fox W’s views on contractual licences.
Taking the strait-jacket off: persistence and the distribution of punishment in England and Wales
Authors: Brownlee Ian D.
Published: April 2006

Among its many provisions, the Criminal Justice Act 1991 contained, in its original s 29(1), a prohibition on the use of previous convictions in the determination of sentences for current offences. This particular provision was the subject of much criticism before and after its coming into effect, so much so that within a year of its implementation it was replaced by a new section which, arguably, could have precisely the opposite effect. What follows is an attempt to chart the short life and sudden death of the original s 29( 1). The importance of such a prohibition to a 'deserts-based' sentencing framework will be discussed and some possible explanations for its removal will be suggested. Some of the implications of the change will also be examined, both in terms of its impact on the coherence of the sentencing framework that remains, and its possible impact on future sentencing trends.
Estoppel: unconscionability as a cause of action
Authors: Halliwell Margaret.
Published: April 2006

The current distinctions between different forms of estoppel are inappropriate and traditional orthodoxy is being challenged by judges and by academics. It is now necessary to recognise that the organising concept for the doctrine of estoppel is unconscionability because the function of estoppel is to restrain injustice arising from unconscionable conduct. The form ofestoppel, known as promissory estoppel, and stemming from the decision in Central London Property Ltd u High Trees House Ltd, is not triggered by the organising concept of unconscionability. It should be regarded, therefore, as an exceptional contractual response, in various situations, to the requirement of consideration. It follows that, in principle, estoppel based upon the concept of unconscionability, may be employed as an independent cause of action. There is ample evidence that this already happens in the context of claims concerning land. This article seeks to demonstrate that estoppel can and should be treated as an independent cause of action in a more general context.
What price a chance?
Authors: Lunney Mark
Published: April 2006

One of the more vexed questions for tort lawyers in recent times has been whether recovery in negligence lies for the what has been described as the ‘loss of a chance’. The exact definition of ‘loss of chance’ is unclear, but it is generally accepted that it refers to the loss of an opportunity to obtain or receive a desired outcome; for example, recovery from a personal injury. Accordingly, where a patient receives negligent medical treatment in circumstances where, even if the treatment was properly carried out, that patient might not have been cured it is said that the patient has lost the chance of being cured as a result of the treatment.
Vicarious liability: for whom should the ‘employer’ be liable?
Authors: Kidner Richard
Published: April 2006

The nature of employment is changing and this brings with it the need to reconsider the rules of vicarious liability as to those for whom an employer should be liable. In recent years government policy indicating the preferred nature of the employment market has brought about considerable changes in employment practices and these have been reflected in employment law. Not only has there been a drift towards self employment but also a rise in such categories as casual workers, agency workers and trainees, and at the same time there has been a rise in legalism in employment law which has produced a number of technicalities specific to that subject. Undue concentration on the contract of employment and the rise of the concept of mutuality of obligation mean that we now have a view of the nature of ‘employment’ which is skewed towards the demands of employment law and the policies embedded therein.
Decentralization and law enforcement in EC competition law
Authors: Shaw Jo
Published: April 2006

In a Notice on cooperation between national courts and the Commission published in early 1993, the European Commission made the following policy pronouncements about its future role in the enforcement of the competition rules contained in the EC Treaty:

‘As the administrative authority responsible for the Community's competition policy, the Commission must serve the Community's general interest. The administrative resources at the Commission's disposal to perform its task are necessarily limited and cannot be used to deal with all the cases brought to its attention. The Commission is therefore obliged, in general, to take all organizational measures necessary for the performance of its task and, in particular to establish priorities.’
The legality of boxing
Authors: Gunn Michael , Ormerod David
Published: April 2006

Boxing, in particular professional boxing, has been bedevilied in recent years by a number of highly publicised tragedies in the ring. Despite these tragedies, the Law Commission in its recent Consultation Paper declined the opportunity to review the legality of professional boxing. The Law Commission concluded that

‘boxing, if it is to remain lawful, can only do so by the application of public policy considerations that are particular to that sport. Since that is a matter of pure policy, divorced from the more general considerations addressed in this Paper, we do not think it would be useful for us to add to the already formidable public debate on the issues.
Williams v Hensman and the uses of history
Authors: Luther Peter
Published: April 2006

When the topic of severance of a beneficial joint tenancy is discussed, most judges and academics start with the case of Williams v Hensman. The judgment of Sir William Page Wood V-C is the ‘locus classicus’, the ‘starting point for any discussion of the modem law’. One paragraph of Page Wood's judgment is quoted in case after case:

‘A joint tenancy may be severed in three ways: in the first place, an act of one of the persons interested operating on his own share may create a severance as to that share. The right of each joint tenant is a right by survivorship only in the event of no severance having taken place of the share which is claimed under the jus accrescendi. Each one is at liberty to dispose of his own interest in such a manner as to sever it from the joint fund - losing, of course, at the same time, his own right of survivorship.
Directors’ disqualification: insolvency practitioners and the decision-making process
Authors: Wheeler Sally
Published: April 2006

The Company Directors Disqualification Act 1986 (CDDA) instituted, inter alia, a mechanism whereby directors of failed companies can be disqualified from holding office in the future as the result of an application to the court by the Secretary of State, or in the case of compulsory liquidators, the official receive and a subsequent finding by the court that the director is unfit. The operation and effect of the CDDA has been the subject of speculation in the national press, other media and comment from insolvency practitioners since its inception. Most of this comment has focused on the role of the DTI and on its perceived failure to take steps to disqualify directors in sufficient numbers.
Private property, public access and occupiers’ liability
Authors: Barker FR , Parry NDM
Published: April 2006

There is nothing new about legal rules which provide that a person who is in control of land owes a duty of care to entrants thereto. These occupiers’ liability rules are often seen as something primarily to do with tort, but their content and substance are also likely to reveal a good deal about the ‘property policy’ of the legal system in question, in the sense that they will indicate the respective weight and importance attachkd to various kinds of competing claim over land. A legal system containing rules that restrict the circumstances in which those with individual, controlling claims over land owe a duty of care to other persons entering that land would appear to indicate a policy preference for supporting and protecting ‘private property’ claims to land above others. On the other hand, a system which imposes on those controlling land a greater degree of legal responsibility for persons entering thereon may be one based on a policy of recognising, protecting and supporting a range of claims in land beyond those of a narrow, private nature.
The informal creation of interests in land
Authors: Howard Mark , Hill Jonathan
Published: April 2006

It is a general principle that interests in property are transferred consensually. Of course, the law may provide that in certain circumstances property may be expropriated by the state or that a person's property should be transferred to another independently of the owner's will; for example, when a person becomes bankrupt his assets vest automatically in the trustee in bankruptcy. Nevertheless, dealings between individuals with regard to property are premised on the notion that property entitlements are transferred by consensual arrangements. A sale, for example, requires the agreement of the buyer and the seller. The position with regard to gifts is slightly more difficult because English law does not require any actual acceptance by the donee. However, as Lawson and Rudden point out, ‘since [the donee] is at liberty to refuse the gift, from his failure to do so it may be presumed that he is willing to acquire the property in question.’
What's wrong with insider dealing?
Authors: McVea Harry
Published: April 2006

If there is one fact about which critics (deregulators) and proponents (regulators) of anti-insider dealing laws are certain to agree, it is that rules designed to prohibit trading on inside information are popular. Virtually every country with a developed securities market has implemented legislation regulating insider dealing and in the vast majority of cases criminal sanctions have been imposed. Britain is no exception, and has recently reaffirmed its policy commitment in the Criminal Justice Act 1993, Part V (CJA). Regulators claim that legislation is justified on the basis of a range of different arguments, the most consistently cited of which is that insider dealing jeopardises the development of fair and orderly markets and by so doing undermines investor confidence. Other justifications include allegations that insider dealing is immoral, and contrary to ‘good business ethic’; that it hurts corporations (and their shareholders), investors, and market-makers;
How to compare now
Authors: Legrand Pierre
Published: April 2006

It is apt to say that Europe, or at least the Europe of the European Union, is currently experiencing a comparative moment. To quote from Nietzsche, ours is the ‘age of comparisons’. For the first time, the two legal traditions represented in Western Europe – known to anglophones as the ‘civil law’ and the common law - find themselves interacting with one another within a general legal framework, that of the Treaty of Rome. Of course, there has long been mutual influences and interferences. For instance, one can convincingly argue that the ancient common law was but a by-product of an earlier form of the civil law. In the words of Raoul van Caenegem:
Contractual obligations of the company in general meeting
Authors: Jaffey Peter
Published: April 2006

In company law usually the difficulties in determining whether a putative contractual obligation is binding on the company are matters of agency. The issue is whether the person who purported to commit the company to the contract had the requisite authority under the common law rules of agency as modified for companies by statute. At one time it was necessary also to consider whether the contract was beyond the capacity of the company under the ultra vires doctrine, which limited the capacity of the company to the range of business activities defined in the objects clause of its memorandum. Now, following the Companies Act 1989, the capacity of the company is no longer limited in this way to a certain range of activities.
Privileging the medical norm: liberalism, self-determination and refusal of treatment
Authors: Harrington John A
Published: April 2006

In the last twenty-five years consent has emerged as central to ethical and legal thinking on medical treatment. The meaning of consent and its importance and applicability in the medical context has been tested by scholars and judges in most western jurisdictions. This essay seeks to re-examine the role of consent in medical law in England having regard to a recent series of cases concerning the refusal of treatment. By linking the law, as it has emerged from these decisions, with that developed in the 1980s concerning the doctrine of informed consent it should be possible to draw some conclusions regarding the role of law and the courts in medicine. Throughout we shall be contrasting the supposedly traditional and outdated paternalism of the medical profession with the liberal, pro-autonomy strategies of (mainly) academic commentators.
Protecting women who provide security for a husband's, partner's or child's debts. the value and limits of an economic perspective
Authors: Richardson Megan
Published: April 2006

In recent cases English, Australian, and New Zealand courts have been called on to deal with apparently similar fact situations of a woman entering into a mortgage, guarantee or joint loan contract with respect to a husband’s, partner’s or child's business debts, placing her home at risk. Yet the results and reasoning in the cases appear to be markedly different. The question is whether the apparent differences can be resolved to yield a coherent policy approach. It will be argued, drawing on an economic-feminist perspective that the cases can be resolved in terms of the courts’ preparedness to acknowledge only limited categories of behaviour and circumstances, when measured against the paradigm of the ‘rational economic man’, as displacing the assumption that contracting increases welfare.
Dangerous liaisons: new developments in the law of defective premises
Authors: Stychin Carl F
Published: April 2006

In 1995, the highest courts in two Commonwealth jurisdictions - Canada and Australia - squarely faced the issue of the liability of builders of defective and, in the case of the Canadian Supreme Court, dangerous premises in tort.’ The determination in both cases that the builders were liable to the remote purchasers for the cost of repair, based on a duty of care owed to them, can be contrasted to the current state of tort law in this country dealing with defective and dangerous premises. In fact, the articulation of the reasons why a duty of care was imposed in these cases - as reflecting considerations both of principle and policy - provides a more compelling analysis than has been seen to date in the British law of negligence.
Estoppel and the protection of expectations
Authors: Cooke Elizabeth
Published: April 2006

Does the law of estoppel remedy reliance loss, or protect and grant expectations? In 1983 it was said that:

‘This is a question that the courts must decide once and for all, and … they must not shirk from providing an answer by pretending that that answer will vary according to the facts of each particular case.’

This article examines a view about this question which I shall call the ‘reliance loss theory’, which states that the normal response to a successful plea of estoppel is to compensate the claimant's reliance loss rather than to fulfil his expectations; in other words, that the court will, if possible, remedy the detriment he has already suffered in reliance upon what the other has said, without going to the lengths of obliging that other to abide by, or fulfil, what he has led the claimant to believe by his conduct or silence. The reliance loss theory has been presented as a description of what actually happens, but it also appears as an argument for what the law should be.
Approaches to broadcasting regulation: Australia and United Kingdom compared
Authors: Hitchens L P
Published: April 2006

Delivering the 1995 Goodman Lecture, David Glencross, the then Chief Executive of the Independent Television Commission (‘ITC’) commented that the Broadcasting Act 1990 did not contain sufficient flexibility to allow the ITC to deal effectively with unforeseen developments such as changing technology and media ownership and control issues. This is an interesting comment on the legislation because the Broadcasting Act 1990 represented a deliberate move towards a rule-based form of regulation away from the flexible, non-specific and discretionary style of the Broadcasting Act 1981 which it replaced. The White Paper which set out the Government's proposals for the new regulatory system emphasised this:

‘The ITC would apply lighter, more objective programme requirements. …The ITC would therefore adopt a less heavy handed and discretionary approach than the IBA necessarily does at present’.

However, the Government recognised that ‘[a] new enabling framework must be flexible enough to allow for technological change’.
The renascence of uniform law: European contract law and its components
Authors: Basedow Jürgen
Published: April 2006

The general theme of this conference - legal change and legal scholarship across Europe - reflects a growing interest of British academic lawyers in the increasing European dimension of law. Indeed, the new dynamics of the unification movement is one of the most salient features of the legal development of the recent past. It has many aspects, including EC legislation and the drafting of restatements and of general principles of law, which I will shed some light upon in the first part of my paper. I will then venture an explanation for the renascence and the new appeal of the unification movement (section II) before turning to a more specific discussion of the hamonisation of private law in Europe (section III), the significance of general principles of law for its unification (section IV), and the restatements of contract law and their role in the process of integration (section V). For the sake of clarity, I should like to premise that harmonisation and unification, although technically having different meanings, will be used interchangeably here.
European challenges to private law: on false dichotomies, true conflicts and the need for a constitutional perspective
Authors: Joerges Christian
Published: April 2006

This paper advances and defends a ‘constitutionalist’ perspective on the Europeanisation of private law. The first introductory section places the Europeanisation of private law in relation to current debates and then proceeds, in section II, to its practical implications with the help of identifying a significant cluster of conflict. The main part of this paper, however, is concerned with the theoretical issues of the analytical background and normative basis of the constitutionalist perspective.
Exploring the interaction between law and economics: the limits of formalism
Authors: Campbell David , Picciotto Sol
Published: April 2006

As lawyers concerned with the regulation of economic activity, we applaud the recognition in Professor Charles Goodhart's recent Chorley lecture that much of the ‘law and economics’ of the past quarter-century has involved ‘too much one-way traffic’. If the field of law and economics has indeed largely, as Professor Goodhart suggests, consisted of a process of intellectual imperialism, specifically of the colonisation of law by economics, we consider it important to reflect on the reasons for this, and to make some suggestions to improve the collaboration between the two disciplines. In brief, we suggest that this interaction has been bedevilled by its tendency to reproduce the worst aspects of formalism in each discipline.

Professor Goodhart shows that the bulk of law and economics has consisted of a fairly unthinking application of standard neo-classical economic assumptions to legal phenomena which have themselves typically been conceived in conventional doctrinal terms.
Definitions and directions: recklessness unheeded
Authors: Halpin Andrew
Published: April 2006

It is difficult to capture, even metaphorically, the nature of law as practised in the criminal appellate courts when considering the fundamentals of the subject -the basic principles of mens rea. If law is treated metaphorically as a science, allowing, as Lord Denning suggested, its principles to be revised by the demands of justice, in the way that scientific principles are revised by the demands of experimental data, then there should at least be a coherent development of the subject where identifiable principles of law are matched to a more sophisticated grasp of the requirements of justice.

Of course, such a formal image is less fashionable today than it once was, and a more ‘critical’ perspective of legal materials may be taken. But here, too, we lack a suitable image to convey the current state of the law.
Lawyers’ probability misconceptions and the implications for legal education
Authors: Hawkins Peter , Hawkins Anne
Published: April 2006

This article describes an empirical study that was undertaken to see whether lawyers possess the statistical and, more particularly, probabilistic understanding that they need for their professional duties. Their earlier training in mathematics might have been expected to provide them with the relevant understanding, but was found to be wanting. The implications for legal decision making are discussed, and recommendations are made for preparing lawyers with the necessary skills.
Audit, accountability and independence: the role of the Audit Commission
Authors: Hollingsworth Kathryn , White Fidelma , Harden Ian
Published: April 2006

The role of independent institutions, the relationship between independence and accountability, and the meaning and significance of these concepts in terms of democratic ideals, are issues that constitutional analysis of modem government can hardly avoid. The institutions and practice of government audit provide concrete illustrations of the complexities and dilemmas involved in such analysis.

Auditors themselves conventionally distinguish internal from external audit. A widely accepted definition is that external audit means the examination of accounts and other activities, conducted from outside an organisation by an independent review body for the purpose of holding managers to account. In contrast, internal audit takes place within an organisation, to review accounting and other operations as a service to management. An internal audit unit normally operates separately from those within the organisation who are responsible for the activities under review.
The academic and the practitioner
Authors: Birks Peter
Published: April 2006

The Old Hall is full tonight. Those outside who turn and see the line of festal light will not know that the windows are illumined by the brilliance of the company within. This audience is indeed most intimidatingly distinguished. These facts do proper honour to the memory of Francis Mann. He would have welcomed too the happy coincidence, given that Lady Fox is in the chair, that we also have the opportunity to celebrate the appointment of one of this century's greatest judges to the Order of Merit. Three such appointments were announced today. I hope we are allowed to think that Lord Denning has succeeded to the place of Sir Isaiah Berlin, one champion of liberty and human dignity following another.
Women, representation and the legal academy
Authors: McGlynn Clare
Published: April 2006

Successive studies have documented the institutionally marginalised status of many women academics. What remains unclear is whether such findings apply equally to women legal academics. This article begins the process of investigating the role, status and experiences of women legal academics, reporting the findings of the first survey into the representation of academic women in UK university law schools. The study presents a snapshot of the gender composition of law schools in October 1997, at all levels of seniority, together with data on the representation of women in each responding law school. It finds considerable differences between law schools, as well as an under-representation of women compared with men at senior levels. It is suggested that these patterns of the representation of women legal academics have important ramifications for legal education, the legal profession and the discipline of law itself.
The Human Rights Act 1998 and constitutional principles
Authors: Feldman David
Published: April 2006

The article assesses the interaction between the United Kingdom's traditional constitutional principles and the innovative Human Rights Act 1998, which introduces a range of substantive, constitutional values through ‘Convention rights. These values are compatible with collective as well as individual interests, and the scheme of the Act accommodates existing constitutional principles. The Act should therefore generate evolutionary rather than revolutionary change. The limited measure of judicial review of primary legislation should not threaten parliamentary sovereignty. In its technical detail the Act represents a small step beyond the principle of dualism of national and international law, subtly affecting national sovereignty and influencing the research agenda of legal practitioners and academics. The main constitutional effect of the Act, however, will be to bolster Rule of Law principles, with new remedies focusing attention on the notion of equality before the law and putting the conceptual distinction between public and private law under increasing pressure.
Privity reform and the nature of contractual obligations
Authors: Mitchell Catherine
Published: April 2006

This paper examines the justificatory arguments that the UK Law Commission advances in support of privity reform (Law Com no 242) (1996). The Commission believes that its proposed reforms will not cut across the ‘underpinning principles’ of the common law. This is borne out by the Commission's primary justificatory argument - that the privity rule undermines the intentions of the contracting parties - and by its proposal that consideration remain as the test of enforceability of contracts. But given the substantive change to privity that is proposed, and the prospect of the crystallisation of the third party right, it is argued that the Commission in fact favours the more modern reliance-based account of contractual obligation. The effect of this is to create an independent third party right to sue for the performance of the promise, ie a right that does not arise out of the contractual relationship between the parties, but from the third party's own reliance on the promise. This may have implications for enforcement of promises by gratuitous promisees.
Regulating gifts of generosity: the Aberfan Disaster Fund and the Charity Commission
Authors: McLean Iain , Johnes Martin
Published: April 2006

After the Aberfan disaster on 21 October 1966, which killed 144 people, 116 of them children, the Charity Commission, duty-bound to uphold an outdated and inflexible law, intervened and obstructed payments by the charitable disaster fund to individual victims and for the cemetery memorial. It did not intervene to protect the fund from a government raid on its money to pay for the removal of dangerous coal tips above Aberfan – a raid that seems dubiously justifiable in charity law. The failures of regulation after Aberfan are discussed; some of them have since been remedied, some not.
Teaching corporate governance
Authors: Cheffins Brian R
Published: April 2006

Corporate governance is ‘hot’ in the United Kingdom and legal academics have written widely on the subject. Still, the topic has been virtually ignored as an academic discipline for law students. This article argues that corporate governance is a subject which should be included in the law curriculum and describes how a course dealing with the topic might be structured.
Campbell, Espinasse and the sailors: text and context in the common law
Authors: Luther Peter
Published: April 2006

Stilk v Myrick (1809) 2 Camp 317, 6 ESP 129 has long been perceived as a ‘problem case’ in the law of contract. It provides a famous example of conflicting reports: one reporter appears to base the judgment on the doctrine of consideration, the other on public policy. The view that the case turned on the application of the doctrine of consideration had been generally accepted, but was challenged in Williams v Roffey Bros. & Nicholls [1991] I QB1. This article looks again at the texts of the two reports of Stilk v Myrick, and discusses these against the background of law reporting in the eighteenth and nineteenth centuries. It also looks at the case in its historical context, as one of many cases in the law reports concerning aspects of the employment and remuneration of merchant seamen. The writer suggests that judges and commentators have tended - whether looking at the reports of the case as texts, or considering the facts of the case in their historical context - to take an over-simplified view of the case.
Beyond Bland: a critique of the BMA guidance on withholding and withdrawing medical treatment
Authors: Keown John
Published: April 2006

In Bland the House of Lords held it lawful to withdraw tube-feeding from a patient in a ‘persistent vegetative state’ (pvs), even with intent to kill him. The British Medical Association (BMA) recently published guidance on the withholding and withdrawal of ‘medical treatment’, so defined as to include food and water delivered by tube. The guidance endorses the withholding/withdrawal of tube-delivered food and water not only from patients in pvs but also from other non-terminally ill patients, such as those with severe dementia or serious stroke. The underlying justification appears (as in Bland) to be that such lives lack worth. This article offers three major criticisms of the guidance. First, its argument that tube-feeding is medical treatment rather than basic care is weak. Secondly, its reasons for not treating or tube-feeding undermine the BMA's longstanding opposition to active euthanasia and active assisted suicide. Thirdly, it relies heavily on legal precedent at the expense of ethical reasoning.
Lives and works — biography and the law of copyright
Authors: Griffiths Jonathan
Published: April 2006

In both the United Kingdom and the United States, there have been a substantial number of copyright disputes concerning the creation of biographical works. Prominent recent examples have involved J D Salinger and Sir Stephen Spender. In many such disputes, the claimant's motive for bringing infringement proceedings is not financial but ‘personal’— for example, to protect privacy or reputation. In this article, it is argued that, when copyright is employed for such motives, inconsistent results can arise. In particular, in such cases, it is demonstrated that the possession of a copyright interest is capable of providing a number of apparently inequitable advantages to claimants whose privacy or reputation is threatened.
What is a mistake?
Authors: Sheehan Duncan
Published: April 2006

This article seeks to examine the question of what the essential nature and definition of a mistake is. It examines whether it can be properly distinguished from ignorance. The article then seeks to examine the requirement of provability, first in the context of mistakes of fact and then in that of mistakes of law. A Dworkinian approach is taken, arguing that it is possible to be mistaken as to the law. The article then shows why an opinion or misprediction cannot be seen as a mistake, before turning to the topical issue of the manner of the recent removal of the mistake of law bar. Using Dworkin's analysis it will be suggested that where a case is overruled it can be said to have been u mistake to rely on it. The article also argues that Birks’ analysis of the question is flawed, in that he fails to see the real distinction between a mistake and a misprediction.