bluuebunny/crossref_metadata_2025 huggingface dataset:
Constructive trusts over the family home: lessons to be learned from other commonwealth jurisdictions?
Authors: Wong Simone
Published: April 2006

Ownership of the family home is usually not disputed until either the relationship between the spouses or cohabitants breakdown or there is a competing claim over the property by a third party. In such circumstances, determination of ownership rights becomes imperative. The Matrimonial Causes Act 1973 gives the courts adjustive powers to deal with disputes between spouses on the breakdown of the marriage. Notwithstanding this, there may be circumstances where it will be necessary or desirable to determine property rights between spouses. Furthermore, the adjustive powers of the courts are not applicable to cohabitants. Thus, in the absence of legal co-ownership in the family home, cohabitants and spouses who cannot rely on the 1973 Act will have to establish an equitable interest in the property. The analyses relied on are primarily based on property law and trusts principles and, more particularly, imputed trusts and proprietary estoppel. Under trusts principles, imputed trusts are usually taken to refer to resulting and constructive trusts.
Deducting collateral benefits from damages: principle and policy
Authors: Lewis Richard
Published: April 2006

Schemes for compensating injury which operate alongside each other call for important policy decisions to be made concerning their inter-relationship. Are they to take account of one another and, if so, to what extent? These issues can arise in a variety of contexts. Within particular regimes they are the concern, for example, of the overlapping benefit regulations in social security law and the rules relating to contribution in insurance law. However, the focus of this article is upon personal injury litigation. It examines the policy reasons which have been used to justify the different results reached by the law when faced with the problem of ‘collateral benefits’ received by an accident victim also seeking damages. Typically, these benefits are received from the state, or an employer, or an insurer.
Conceptions of property in common law discourse
Authors: Rotherham Craig
Published: April 2006

In 1629 Jones, the registrar to the court of the Bishop of Gloucester, suffered so from the smoke emanating from a nearby brewhouse that he brought an action in nuisance before the Court of Kings Bench. At the time, as water was unsafe to drink, beer and ale were staple beverages. Inclined to reject the claim, Whitelock J pronounced that ‘what is necessary for the commonwealth can never be called a nuisance to any private person.’ His colleague on the bench, Dodderidge J, was more cautious, concluding that, had the brewery been a long-established enterprise, no action would have been available, as one who comes to live near an existing brewhouse must take it as one finds it. However, where - as was true of this case - the brewhouse was a relatively new operation, the matter was less clear.
The entity of French doctrine: some thoughts on the community of French legal writers
Authors: Jestaz Philippe , Jamin Christophe
Published: April 2006

‘Doctrine’, from the legal point of view, is often understood, in France at least, as a collection of works. For example, Le Petit Robert defines it as ‘the entirety of legal works whose aim is to expound or interpret the law (as opposed to legislation and judicial decisions)’. This definition is not erroneous, but it only captures one aspect of the matter. If doctrine were only a collection of works, it would be nothing more than a university or law court library. However, it is clearly much more than that. Likewise, it is clear that poetry cannot simply be reduced to a huge collection comprising the works of all French poets. Beyond the production of doctrine (or poetry) lie the workings of doctrine (or poetry), that is to say the persons who devote themselves to it. It is at this point that one encounters other meanings of the term.
Exclusive rights of burial and the law of real property
Authors: Dowling Alan
Published: April 2006

The ability to identify arrangements affecting property as falling within one or other of the recognised categories of proprietary interest, for example tenancies, licences or easements, and as resulting in certain consequences, is not only desirable, but is in the interest of certainty for all concerned essential. If an occupant of land is a tenant, certain known consequences follow: for example, the occupant has statutory protection which would not be the case were he merely a licensee. Again, if I cross your land merely by your permission, my privilege may be withdrawn at any time, whereas if I have an easement to do so, you cannot stop me. Arrangements which do not behave according to the rules, by appearing to create one type of interest while possessing the attributes of another, either undermine the recognised rules or are exceptional cases which must be acknowledged as such.
Justifying the use of firearms by policemen and soldiers: a response to the Home Office's review of the law on the use of lethal force
Authors: Rogers Jonathan
Published: April 2006

In January 1995, during the furore over the murder conviction of Private Lee Clegg, the Home Office announced a review of the law of murder as the House of Lords had declared it to be. In March 1996 the Report of the Inter-Departmental Review of the Law on the Use of Lethal Force in Self-Defence or the Prevention of Crime was completed and, if not exactly ‘published’, then at least available to interested members of the public. The review was primarily concerned with the possibility of enacting a partial defence to murder, whereby a soldier or policemen who had used excessive force resulting in the death of a criminal suspect would be convicted only of manslaughter, but the Home Office also examined the possibility of giving statutory authority to the internal Army and police regulations upon the use of firearms, in order to clarify the concept of ‘reasonable force’. In the end, however, the Inter-Departmental Review (hereafter ‘the Review’) proposed no change to the law of murder nor of voluntary manslaughter, and neither did it propose any method of clarifying the concept of ‘reasonable force’.
Plaintiff's illegality as a bar to recovery of personal injury damages
Authors: Glofcheski Rick
Published: April 2006

Despite recent attempts at judicial reformulation, the question of the effect of a plaintiffs illegal conduct on his right to pursue a common law negligence action for personal injury damages remains largely unsettled, and on an uncertain policy and doctrinal foundation. There is a continued obsession with public policy, whether expressed, as it is in England, as a matter of public conscience, or in Australia, as a proximity consideration preventing the finding of a duty of care. However formulated, public policy, in particular the public conscience, as an ad hoc means of determining the effect of a plaintiff's illegality, is unsatisfactory for this purpose, and has proved problematic and unmanageable for the courts. It is here submitted that personal injury negligence law, properly understood and deployed, does not require, nor is served by, the continued application of the illegality defence.
The nature of constitutional convention
Authors: Jaconelli Joseph
Published: April 2006

The term ‘constitutional convention’ tends to be attached indiscriminately to any regularity of conduct that is observed in the process of government. It is here argued, however, that constitutional conventions as properly understood are social rules which govern the relations between political parties or the institutions of government. Furthermore, this term is to be confined only to those social rules that are constitutional in character. Intra- party standards of conduct, in particular, have wrongly been accorded the status of constitutional convention. These considerations, together with a detailed examination of the precise status of constitutional conventions as part of the ‘morality’ of the constitution, lead to a re-assessment of the conditions under which constitutional conventions both come into existence and cease to exist.
How do you define a family lawyer?
Authors: Piper Christine
Published: April 2006

Family law has not only become a specialism in its own right, but family law practitioners have claimed for themselves special characteristics. This article reviews the attributes and skills to which the legal profession, and particularly the solicitors branch, aspires. It notes that the ‘specialist’ forms of client care and case management, familiarity with rules and procedures and a conciliatory approach are not unique to family lawyering. Family lawyers also require themselves to have knowledge of ‘non-law’ matters, especially those relating to the welfare of children. On reviewing recent empirical research studies about the work of solicitors, the article asserts that, for family lawyers, non-law norms control their practice and form the framework for a very particular type of client care. The article then goes on to examine - by using research on solicitors attitudes to the ‘meaning’ of the concept of parental responsibility - how practitioners cope with the tensions inherent in modern family legislation. It concludes that solicitors in practice convey policy messages rather than clear messages about legal rights and remedies.
En ventre sa frigidaire: posthumous children in the succession context
Authors: Atherton Rosalind
Published: April 2006

A principal concern of inheritance law is defining the relatedness of individuals. In this context the posthumously born child has to be defined in or out of a kinship network for inheritance purposes. Historically the concerns were ones of paternity and, with it, legitimacy. For the posthumously born child these were vital questions, as the illegitimate child was nullius filius, the son of nobody, and disentitled from inheritance. While modern inheritance law has moved away from the disabilities that illegitimacy once entailed, the responses to questions of relatedness in the context of children born through the new reproductive technologies suggest a different approach - one of exclusion. The frozen embryo which is implanted and born after the father's death raises anew the question of the validity of discriminating between children because of the circumstances of their birth. There is a struggle between the practicalities of the administration of an estate and the philosophy of equality which underpins the modern non-discriminatory approach to children born outside of marriage. This paper explores some of the issues and assesses some of the solutions in contemporary debate.
Nudging and rectifying: the use of fiscal instruments for regulatory purposes
Authors: Ogus Anthony
Published: April 2006

The paper explores two fiscal devices which, while falling short of the ideal which economists have advocated, may induce behavioural change and thus operate effectively as regulatory instruments: the ‘nudging’ tax, which is calculated according to what level of payment is likely to reduce undesired activity; and the ‘rectificatory’ tax, which relates the sum payable to part of the harm caused by the activity. The former has been widely used, and with some success, but there is tension between its regulatory and revenue-raising functions. The latter seems better designed to meet goals of corrective justice than to modify conduct in an economically appropriated way.
Medical manslaughter and corporate liability
Authors: Childs Mary
Published: April 2006

Recent years have seen a rise in the number of manslaughter prosecutions following deaths caused by improper medical treatment. Such prosecutions of individual doctors are problematic because, in many cases, a complex pattern of failures has contributed to the death. One alternative approach would be that of pursuing corporate manslaughter prosecutions against hospital trusts, but current law makes such prosecutions difficult. The Law Commission's proposed offence of corporate killing could, if adopted, form the basis of prosecutions following some hospital deaths. The article considers arguments for and against the use of criminal law in response to deaths caused by medical negligence.
European integration and legal culture: indirect sex discrimination in the French legal system
Authors: Wallace Chloe J
Published: April 2006

The purpose of this article is to examine whether legal culture has an influence on the implementation of EC law in member states by means of one case study; the failure of the French legal community to recognise and apply a prohibition against indirect as well as direct discrimination, which is well established in EC legislation and case law. It is suggested that legal cultural factors may have some role to play. The focus of French legal culture on the importance of legal certainty has contributed to an emphasis on a formal concept of equality within the law, to which the concept of indirect discrimination is not suited. The paradoxical role of the French judge, who is given very little power in theory and who is therefore able to take the inevitable policy decisions behind the cloak of judicial anonymity, means that she is able to avoid the obligation placed on her by EC law to implement a prohibition on indirect sex discrimination.
A matter of trust: the allocation of rights in the family home
Authors: Barlow Anne , Lind Craig
Published: April 2006

The current law of resulting and constructive trusts and proprietary estoppel is acknowledged to provide uncertain and often unsatisfactory remedies to disputes concerning the allocation of property rights in the family home. This article reviews these inadequacies, particularly as they affect the growing numbers of cohabitants, and puts forward radical proposals for reform. It is argued that the special nature of the family home - where the parties' relationship is based on ‘trust and collaboration’ rather than commercial principles - requires reform which takes account of the broader contributions of both parties to the home and to the family in allocating property rights. The law should strive to treat all family homes in a consistent way, provide greater certainty of outcome, and yet do justice between the parties. A system of modified community property is therefore proposed. Broadly, this will provide a sliding scale of allocation of property rights over time for non-owner partners and a presumption of enhancement of the interest of the primary carer of children of the relationship. However, contracting out should be permitted; and a discretion to adjust the presumptive rights retained by the court where ‘manifest injustice’ is demonstrated.
A ‘new’ head of damages: damages for mental distress in the English law of torts
Authors: Giliker Paula
Published: April 2006

This article examines the ability of the claimant to recover damages for mental distress in the English law of torts. This is an area of law which has received little attention and indeed, the general impression is frequently that such damages are not recoverable. This article seeks to establish that this is far from the case and that damages are frequently awarded for mental distress even if they are not always openly recognised. Most lawyers are familiar with the award of damages for ‘suffering’ within the action for personal injury, but damages for distress are awarded generally, particularly as aggravated damages, as recognised by the Law Commission in 1997. It will be argued that much will be gained by appreciating the true nature of these damages and the policy factors which determine when the claimant will be granted such an award. Whilst there is no evidence to support a right to claim such damages in their own right, there is sufficient authority for a separate head of damages us part of the claimant's general compensatory claim. It is therefore submitted that open recognition of this head will be to the benefit of individual claimants and the system as a whole in clarifying this area of damages.
The judicial duty to give reasons
Authors: Ho H L
Published: April 2006

The desirability of having a general duty to give reasons for court decisions has been much debated in Commonwealth jurisdictions. In England, a series of recent cases has consistently upheld the duty, albeit with qualifications. The existence of this general duty is defensible in principle. However, exactly what is required to comply with the duty is not clear. The explanation the judge is expected to give may be analysed in terms of its structure, contents and standard. These aspects are dependent on many factors, such as the rationale underlying the duty, the limitations faced by the judicial system, the nature of the decision- making process, and the significance of the decision. While one can identify the major considerations that operate at a general level, the scope and extent of the duty to explain a particular decision are dependent on the circumstances of the case. This variability makes it difficult to be certain as to when a breach of the duty has occurred. The duty must meet the purposes for which it is imposed and at the same time must not be too unrealistic in its demands.
‘If you look after me, I will leave you my estate’: The enforcement of testamentary promises in England and New Zealand
Authors: Nield Sarah
Published: April 2006

Occasionally, a case comes to court in which a disappointed relative or other carer seeks the enforcement of a promise made by a testator to leave them all or part of their estate if the relative or other carer looks after them or provides some other service. This article compares and contrasts the courts’ response, in England and in New Zealand, to the enforcement of these testamentary promises. In England the courts have struggled to provide redress with the tools available from the common law and equity. Despite an array of possible remedies from contract to estoppel and restitutionary remedies, few claimants have proved successful. The sanctity of testamentary freedom and formalities has prevailed over the injustice caused to the disappointed carer. Yet in New Zealand testamentary promises are commonly enforced under the Law Reform (Testamentary Promises) Act 1949, a statute passed specifically to loosen the grip of testamentary freedom in the, face of such promises. Under the influence of this statutory impetus, the New Zealand courts have shown a liberal and flexible approach to the interpretation of this statute that is both interesting and enlightening. They have recognised that in the personal context of the testamentary promise traditional notions of contractual promises and consideration or detrimental reliance need to be rethought. Perhaps it is time for us also to rethink our approach to the treatment of those who provide unpaid care or other services when they have been led to expect some sort of testamentary recompense.
Illegal transactions: chaos or discretion?
Authors: Buckley R A
Published: April 2006

The provisional proposals of the Law Commission for reform of the law relating to illegal transactions are examined in relation to proposals for reform of the same area of the law in other Commonwealth jurisdictions. The working in practice of the New Zealand Illegal Contracts Act 1970 is considered, and judicial development of the law in Canada and Australia is contrasted with the reluctance of the judiciary in England to embark upon systematic reform. The conclusion is reached that there is a proven need for a move away from rigidity and literalism towards a legitimated judicial discretion enabling the great variety of factors in illegality cases to be weighed. Furthermore, the artificial and arbitrary notion of ‘reliance’ upon illegality should be abrogated. Only statutory reform of the law along the lines provisionally proposed by the Law Commission is capable of bringing about these changes in England.
General and special property in goods
Authors: Curwen Nicholas
Published: April 2006

The law of goods remains in a relatively undeveloped state, retaining both a vocabulary and doctrines which derive from the late Year Book period. That vocabulary is expressed in terms of general and special property in goods. The ‘property’ in goods was always regarded as indivisible because there could be no estate in goods. That doctrine survives in the modern rule that ownership of goods is indivisible. The difficulty of reconciling the old language with modern usage is conventionally overcome by assuming that the old terms simply correspond with ownership and possession. It will be argued in this paper that no such correspondence exists because general and special property always represent an aspect of ownership. In order to demonstrate this assertion it is necessary to depart from orthodox doctrine and insist that ownership is severable. This will be illustrated by the way in which proprietary interests behave upon the creation of a pledge and a hiring of goods.
Informal acquisition and loss of rights in land: what justifies the doctrines?
Authors: Davis Christine J
Published: April 2006

This article considers the justification for various doctrines pursuant to which rights in or over land may be acquired or lost informally. Three relevant factors are identified: the fault of the owner of the land or interest; potential unfairness to the other party; and policy reasons. Individual doctrines are examined to ascertain which factors are relevant to each. It is then argued that only policy reasons or a combination of fault and unfairness can adequately justify depriving someone of their rights in land and that some policy reasons relied on by the courts are no longer sufficient justification in the light of the Land Registration Act 1925. Consequently, it is argued that some of the doctrines discussed require reconsideration, if not abolition.
Defamation law in a changing society: the case of Youssoupoff v Metro-Goldwyn Mayer
Authors: Treiger-Bar-Am Leslie Kim
Published: April 2006

Defamation law offers a unique view of society and the changes it undergoes. When a claim of reputational injury is made, the case exposes the prejudices alive in the particular society at hand; and when the law deems a claim actionable, it recognises and, at some level, lends credence to the prejudices held. The case of Youssoupoff v Metro-Goldwyn Mayer is a case in point. The claim by Princess Youssoupoff in 1934 that an imputation of rape or seduction is libelous reveals underlying currents in English society at the time as to class, nation and gender. The judicial recognition of the claim, and the legal and extra- legal reactions to the claim at the time and since, further raise for examination the relationship between law and morality: to be recognised as defamatory, must an allegation impute immorality to the plaintiff? Should the law of defamation recognise societal prejudices that are real, even if deemed by lawmakers and the judiciary invalid? Is it the function of the law to mirror the society in which it is produced or to carry it forward?
Winning the battle against unfair contract terms
Authors: Bright Susan
Published: April 2006

The Director General of Fair Trading has recently won the first case seeking an injunction to restrain the continued use of unfair terms in consumer contracts. This represents only the tip of the iceberg in terms of the activity of the Unfair Contract Terms Unit established to enforce the Unfair Terms in Consumer Contracts Regulations. The sparsity of reported judicial decisions does not mean that the Regulations have been ineffective; far from it, numerous contracts across a variety of economic sectors have been amended following complaints made under the Regulations. It may still be early days in the battle against unfair contract terms but, as will be shown, the Regulations are proving to be a highly effective weapon in the consumer's armoury.
Reading down legislation under the Human Rights Act
Authors: Edwards Richard A
Published: April 2006

The purpose of this article is to examine the nature and potential impact of s 3 of the Human Rights Act 1998. The article draws upon the experience of courts in other Commonwealth jurisdictions which operate a similar provisions. The author analyses the nature of the interpretative technique, reading down, that s 3 requires and illustrates its potential by reference to a number of situations involving statutory imperfections such as ambiguity and overbreadth. The author also outlines the impact that s 3 may have on the exercise of statutory discretion. The author further argues that reading down should not be confused with more intrusive remedies, such as reading in, which are not available under the Human Rights Act.
Osman and police immunity in the English law of torts
Authors: Giliker Paula
Published: April 2006

This article examines and questions the nature of police immunity from claims for negligence in the investigation and suppression of crime, as stated by the House of Lords in Hill v Chief Constable of West Yorkshire. This issue has been discussed before the European Court of Human Rights in Osman v United Kingdom, where the court held that a blanket application of the immunity was contrary to art 6 of the European Convention on Human Rights. This article will argue that this decision does not overturn the basic public policy principles for the immunity stated in Hill and that further examination of this area of law is required. It is submitted that if the law is considered in terms of proximity rather than in terms of public policy immunity, a clearer understanding of the principles underlying this area of law can be reached together with the desirable goal of removing the term ‘immunity’ from this area of law.
Charities in the contract culture: survival of the largest?
Authors: Morris Debra
Published: April 2006

Drawing on the findings of a year-long empirical study of 15 charities in the county of Merseyside, this article examines some of the implications for charities of entering into the ‘contract culture’. Although not the focus of the empirical study as a whole, the particular aim of this article is to consider the effect of the contract culture on the typically small charity. After a brief consideration of the legal status of charities funding documents within the contract culture, a number of problems faced by small charities that are embraced by the contract culture, together with their legal consequences, are examined. A number of survival tactics for small charities are then discussed. In the light of the publication of the government Compact on relations between itself and the voluntary and community sector, a plea is made for more equal partnerships to be forged between charities and their funders within the contract culture.
Whistling in the wind? The Public Interest Disclosure Act 1998
Authors: Vickers Lucy
Published: April 2006

In a number of high profile disasters, human and financial, in recent years, such as the Piper Alpha oil rig fire and the collapse of the BCCI bank, employees had concerns about the impending disaster but did not raise them for fear of repercussions at work. This has led to increased recognition of the role that employees can play in safeguarding the public interest. In 1998 legislation was finally passed to provide employment protection for employees who raise concerns about malpractice and wrongdoing at work. The Public Interest Disclosure Act 1998 (PIDA) provides protection against dismissal and detrimental action where employees make disclosures about a range of specified subjects. Protection is primarily aimed at internal disclosure, but the Act also provides a framework for raising issues externally. This article examines the provisions of the Act and assesses its potential to protect those who risk their livelihoods to raise concerns that are in the public interest.
Leases: are they still not really real?
Authors: Harwood Michael
Published: April 2006

This article seeks to show why, historically, the lease/tenancy were viewed as being peripheral to the scheme of land law, not perceived as part of ‘real property It suggests that the continued classification today of leases/tenancies as personalty reflects an uncritical perpetuation of this perception, a failure to reappraise their legal status and function in the context of today law and social relations concerned with land. More generally, it touches on a possible need to reappraise many of the underlying, historically derived schemata and structures of today's property law. Finally, as the offer of a small step in the reappraisal of the place of lease/tenancies, it argues that today, in law, they can and should properly be classified (together with freeholds) as part of real property.
Pinochet's fallout: jurisdiction and immunity for criminal violations of international law
Authors: Turns David
Published: April 2006

This article provides a general overview, and analysis of the litigation surrounding General Augusto Pinochet's detention in London in 1998 and the subsequent attempts to extradite him to Spain, for trial on charges relating to human rights abuses committed during the period of his militaty dictatorship in Chile between 1973 and 1990. The complicated sequence of events, from proceedings in the Spanish courts (which started in 1996) up to Pinochet's release from British custody on medical grounds in 2000, is examined und the potential consequences of the two substantive House of Lords decisions are explored from a British-based public international lawyer's perspective. The focus of the analysis is not so much on the detailed technicalities of personal immunity in English law: as on the broad concepts of State jurisdiction over international crimes and immunity for such crimes in international criminal law: notable aspects discussed include the future of universal jurisdiction in customary international law and the position of that law in the UK's municipal courts.
Extending the liability of the state in damages
Authors: Amos Merris
Published: April 2006

It is still the case in English law that invalid administrative action alone gives rise to no claim for damages. Individuals suffering loss as a result of invalid administrative action may remain uncompensated unless they have a private law remedy against the public body such as a claim in tort or contract. Notwithstanding this prohibition, the passage of the Human Rights Act 1998 and developments in Community damages law have greatly increased the liability of public bodies in damages. However, the extension of liability in these areas raises questions as to whether it is satisfactory or even possible for the prohibition on damages for invalid administrative action to be maintained given the anomalies that have and will be created. Statutory reform, drawing on Community law, the Human Rights Act and jurisprudence of the European Court of Human Rights, may go some way towards resolving existing anomalies and providing individuals with an adequate, alternative means of obtaining redress.
Religious charities and the juridification of the Charity Commission
Authors: Edge Peter W , Loughrey Joan M
Published: April 2006

The Charity Commissioners have indicated that they possess a law-making role. This paper evaluates the extent to which the Commissioners have exercised this role in relation to charities for the advancement of religion, and evaluates this role in the light of the Human Rights Act 1998. The analysis draws upon both case law and decisions of the Commissioners, in particular the decision of the Commissioners to refuse status as a religious charity to the Church of Scientology.
Mainstreaming equality in Ireland: a fair and inclusive accommodation?
Authors: Mullally Siobhán
Published: April 2006

This article examines the steps taken in recent years to mainstream equality issues into the law and policy process in Ireland. Although official discourse increasingly recognises the need to tackle inequality and social exclusion, there is little to suggest that the mainstreaming process has been a transformative one. A reluctance to move beyond established legal categories or to radically challenge law and policy-making processes has greatly restricted the potential for reform. If mainstreaming is to be effective, the pursuit of equality must be recognised as a core norm guiding all aspects of law and policy making. In the Good Friday Agreement the Irish government committed itself to promoting equality in all social and economic activity and to demonstrating its respect for the diverse identities and traditions on the island of Ireland. Much work remains to be done if this commitment is to be fulfilled.
The mosaic art?: cross-examination and the vulnerable witness
Authors: Ellison Louise
Published: April 2006

Cross-examination is lauded within the common law tradition as the definitive forensic device for exposing testimonial infirmity. Victimological study of criminal trial proceedings has, however, revealed the extent to which cross-examination is used as a tool to humiliate, intimidate and confuse opposing witnesses. Particular difficulties confront children and those with learning disabilities as little reference is made during cross-examination to their special communicative needs. This paper reviews the tactics and techniques employed by cross-examiners to systematically destroy the credibility of those with limited language capability. The main aim of the paper is, however, to demonstrate the significant limitations of what may be termed an accommodation approach to the problems facing vulnerable witnesses, whereby ‘solutions’ are sought and crafted within the established trial framework. Such an approach ignores the very nature of adversary advacacy and the potent structural barriers to effective regulation of courtroom questioning within an adversarial system of trial.
Distinguishing between property damage and pure economic loss in negligence: a personality thesis
Authors: Witting Christian
Published: April 2006

The law of negligence favours redress for damage to property interests over redress for damage to mere economic interests. The question arises whether this preference can be justified. In endeavouring to answer it, the author surveys existing reasons given by courts and commentators for maintaining a distinction between property and economic interests. Each of these reasons, which collectively focus upon the ‘problematic’ nature of economic losses, is found to be either ad hoe in nature or without substantial explanatory power. However, it is submitted that the distinction is explicable on the basis that, whereas an individual's personality is partly constituted by the property that he or she owns, so that property can be seen as essential to the ways in which individuals constitute and define themselves, no such claim can be made with respect to mere abstract holdings of wealth. Although wealth permits the acquisition of property and participation in activities and experiences which might help to constitute and define the self in the future, the very fact that wealth has not been transposed into these things precludes it from being considered as important as actual holdings of property. The protection of property interests ought, therefore, to precede the protection of mere economic interests.
Classifying precontractual liability: a comparative analysis
Authors: Dietrich Joachim
Published: April 2006

The common law has solved questions of liability arising in the context of precontractual negotiations by resort to a range of different doctrines and approaches, adopting in effect ‘piecemeal’ solutions to questions of precontractual liability. Consequently, debate has arisen as to how best to classify or categorise claims for precontractual work and as to which doctrines are best suited to solving problems arising from anticipated contracts. The purpose of this article is to consider this question of how best to classify (cases of) precontractual liability. The initial focus will be on the ongoing debate as to whether principles of contract law or principles of unjust enrichment can better solve problems of precontractual liability. I will be suggesting that unjust enrichment theory offers little by way of explanation of cases of precontractual liability and, indeed, draws on principles of contract law in determining questions of liability for precontractual services rendered, though it does so by formulating those principles under different guises. Irrespective, however, of the doctrines utilised by the common law to impose liability, it is possible to identify a number of common elements unifying all cases of precontractual liability. In identifying such common elements of liability, it is necessary to draw on principles of both contract and tort law. How, then, should cases of precontractual liability best be classified? A consideration of the issue of classification of precontractual liability from a perspective of German civil law will demonstrate that a better understanding of cases of precontractual liability will be gained by classifying such cases as lying between the existing categories of contract and tort.
eXistenZ: bio-ports/boundaries/bodies
Authors: Thomson Michael
Published: April 2006

In focusing on David Cronenberg's film eXistenZ this paper interrogates the place of cyberpunk and the cyborg in understanding and challenging law's bodies and embodied subjectivities. The genre proves descriptive of the gendered bodies of law's imagination, yet it also contains the possibility of dissolving the prescriptive binaries of law and other discursive fields. The essay works with Donna Haraway's contention that the cyborg in its boundary transgression is a metaphor for gender obsolescence. Relating cyborg theory to law, and noting how law has colonised other discursive fields, the oppositional/binary construction of men's bodies as bounded and safe whilst women's are constructed as fluid and dangerous is examined. To illustrate this the essay considers the industrial bodies of law's imagination, an area which replays this bounded/fluid binary. Reading eXistenZ, the essay attempts to sketch an alternative analysis which recognises and challenges the gendered bodies of law's imagination. In focusing on the issues of permeability, of boundary pollution and fusion, the analysis privileges a recognition of bodies as both bounded and fluid. In this the analysis challenges the construction of gendered bodies within these policies and hence the construction of gender appropriate employment, behaviour and environments.
Restitution in public law: bearing the cost of unlawful state action
Authors: Alder John
Published: April 2006

This paper argues that the principle inWoolwich Building Society v IRC (No 2)(1993) that the citizen has a prima facie right to the repayment of money voluntarily paid in response to an unlawful demand by a public authority, should not be regarded aspart of the private law of restitution creating aprivate law right but as a free standing public law principle enforceable in the Administrative Court, broadly analogous to a legitimate expectation. The flexible process and the discretionary nature of the judicial review jurisdiction is more appropriate to the issues that arise than is the private law of restitution with its emphasis on bipolar disputes. Underlying the argument is the claim that the rule of law should not give automatic protection to a person who voluntarily makes a payment to a public authority while believing that payment to be unlawful. More generally, the paper suggests that the enterprise of seeking to subsume restitutionary principles within a single conceptual framework may be misconceived.
Which presumption? A critique of the House of Lords' reasoning on retrospectivity and the Human Rights Act
Authors: Beyleveld Deryck , Kirkham Richard , Townend David
Published: April 2006

In this article we argue that the House of Lords recently erred severely by failing to apply the Human Rights Act 1998 retrospectively, and that the appropriate remedy is to deploy the 1966 ‘Practice Statement’. We describe how the House has made a number of basic mistakes in interpreting the literal meaning of the Act. These errors are partly explained by the court's reliance upon a general presumption that law should not be applied retrospectively. We argue that human rights legislation is a necessary exception to this rule. We maintain this for philosophical reasons, but also contend that s 3(1) of the Human Rights Act reverses the presumption against retrospectivity and requires a new presumption that human rights should be given effect whenever it is possible to do so. This is a vital issue because s 3(1) is one of the most important provisions in the UK constitution.
Seeking the principle: chancels, choices and human rights
Authors: Dawson Ian , Dunn Alison
Published: April 2006

Chancel liability is an ancient property right, enforced by a Parochial Church Council, attaching to certain former rectorial lands. It requires a landowner to bear the cost of repair of the parish church chancel. The right poses particular problems for a purchaser, not least because it is hard to discover and is not limited to the value of the land. A recent decision of the Court of Appeal has found that a Parochial Church Council falls within section 6 of the Human Rights Act 1998 as a public authority, and that chancel liability infringes article 1 of the First Protocol of the European Convention on Human Rights. This paper will dispute the rationale used by the Court of Appeal, and in so doing will argue that whilst chancel liability is outmoded, widely regarded as incongruous and does not bear scrutiny in its modern context, it should nevertheless be removed on a principled basis, avoiding unwanted repercussions elsewhere in the law.
Law, harm and redress: a feminist perspective
Authors: Conaghan Joanne
Published: April 2006

This paper explores understandings of harm in law through the application of a feminist perspective. Drawing on the idea of harm as a social construct, the paper considers the role of law in shaping perceptions of when a harm has occurred and whether it should be redressed. These themes are illustrated by means of a close legal and contextual analysis of the House of Lords decision in Waters v Metropolitan Police Commissioner, in which a woman was allegedly bullied at work for reporting she had been raped by a fellow officer. The paper raises questions about why this particular claimant had difficulty establishing that she had suffered harm, despite alleging 89 separate hostile acts by fellow officers, and even though the courts who heard her claim assumed for the purposes of legal argument that the facts alleged were true. It is argued that the narrowness of the approach adopted by most of the judges who heard Ms Waters' claim precluded recognition of the seriousness of the allegations and the social, political, and legal need to provide redress.
At the margins of the history of English law: the institutional, the socio-political and the ‘blotted-out’
Authors: Stramignoni Igor
Published: April 2006

So much of what, so far, has constituted the grammar of mainstream historical discourse on English law can be broadly characterised as being primarily concerned with either formal legal institutions or their socio-political context. While such histories are generally useful, they fail to see what other-histories – what radically different stories – could be told instead. Such a web of other-histories, it is here suggested, require both time and imagination. By temporarily leaving mainstream historical accounts and entering into the time of legal history the centrality of so many institutional and socio-political histories of English law may have to be reconsidered. In particular, what would become clear is that one type of legal history needs urgently to be told – a history of the ‘blotted-out’. Neither included in mainstream legal history, nor excluded from it – neither visible nor memorable – the history of the blotted-out is the history of what can be found, so commonly and ordinarily, in everyday life. Mainstream legal history is either unaware of, or uninterested in, the blotted-out. Yet, it is precisely a history of the blotted-out which, importantly, would guard, in history, the possibility of law's most original imagination.
The system of the criminal law
Authors: Tadros Victor
Published: April 2006

This paper attempts to analyse the extent to which elements of the criminal law admit uniform definition across offences, and the implications of that question. That debate contributes to recent scholarship on the scope, purpose and content of the general part. I argue that there are elements which can be defined uniformly, elements which cannot be defined uniformly and elements which, although they are subject to variation depending on offence context, ought to be considered in general by the courts. The considerations that are important in thinking about uniformity are outlined in each of these cases. This has implications for the way in which we think about the general part. Generality is a question of both degree and kind. Consequently, the scope, purpose and content of the general part are more complex than has previously been thought. In the final section I sketch some of the implications that this analysis of the general part might have for methodology generally and, in particular, for social theory.
The changing university and the (legal) academic career – rethinking the relationship between women, men and the ‘private life’ of the law school
Authors: Collier Richard
Published: April 2006

This article seeks to contribute to a growing debate within legal studies about the relationship between women, men and the ‘private life’ of the law school. Via an exploration of the economic, political and cultural shifts presently transforming understandings of what academic life entails, the article seeks to unpack the contours of the material and emotional economy in which (legal) academic labour now takes place. As a particular kind of knowledge worker within an increasingly corporatised university environment, a shift in the dominant gender configurations of higher education (marked notably, I suggest, by the rise of ‘entrepreneurial masculinities’) has itself resulted in a complex shift in the landscape of doctrinal and socio-legal legal scholarship, in the hierarchy of law schools more generally and in understandings of what a ‘successful’ legal academic career entails. Conclusions address the possible implications of these developments for legal academics seeking to re-negotiate a growing tension between ‘work/life’ commitments at a time of rapid change and uncertainty within academic life. Importantly, these are changes which, I argue, have a gendered dimension and are themselves playing out in some unpredictable and at times – for both women and men – frequently contradictory ways.
The victim and the criminal process: an analysis of recent trends in regional and international tribunals
Authors: Doak Jonathan
Published: April 2006

This paper examines the recent trends in regional and international tribunals that relate to the position of the victim in the criminal process. Recent decisions in both the European Court of Human Rights and other international tribunals have illustrated a new and progressive attitude towards the role of the crime victim. This can be attributed, in part, to the breakdown of the public/private divide in human rights law and the mutually expanding parameters of both human rights discourse and criminal law. It is argued here that cross-fertilisation between these disciplines, which is widely evident in current policy making and judicial decision-making, has meant that the traditional failures of human rights law and the criminal law to protect victims are being addressed – at least to some extent. A line of European and international case law has developed which suggests that victims of crime have acquired a number of enforceable substantive rights, similar to those held by victims of abuse of power. While the potential for victims to be further empowered will always be inherently limited in adversarial jurisdictions, it is none the less a welcome development that a clear trend is emerging which indicates that international policy makers and tribunals are viewing criminal justice issues in a much more holistic manner.