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Intellectual Property Absurdism or: How I Learned to Stop Worrying and Love IP The Modern Law Review (IF 1.54) Pub Date : 2024-03-06 Patrick R. Goold
Enrico Bonadio and Aislinn O'Connell, Intellectual Property Excesses: Exploring the Boundaries of IP Protection, Oxford: Hart Publishing, 2022, 336 pp, hb £81.00, pb £40.49
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Redefining Compensation under International Law: the Methodology of the International Court of Justice in DRC v Uganda The Modern Law Review (IF 1.54) Pub Date : 2024-02-09 Daniel Brinkman
In February 2022, the International Court of Justice handed down its decision in Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda) which determined claims against Uganda for its unlawful military activities in the territory of the Democratic Republic of the Congo. The decision is significant for the law of reparations, with the Court adopting a controversial
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Anxieties about International Law: Law Debenture v Ukraine The Modern Law Review (IF 1.54) Pub Date : 2024-02-08 Marcus Teo
The idea that international law is received into the common law to some greater or lesser extent persists in contemporary accounts of the English constitution. In The Law Debenture Trust Corporation plc v Ukraine, however, a majority of the Supreme Court held – in circumstances ripe for its reception – that international law had no place in the English common law of duress and contractual defences
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Squaring the Circle? Regional Airport Expansion, Climate Change and the Planning Regime The Modern Law Review (IF 1.54) Pub Date : 2024-01-22 Sanja Bogojević
Airports are contested infrastructures. They are regarded both as icons of modernity and as a threat to a climate-neutral future. Judicial review is increasingly relied upon to determine the legality of planning permissions for further airport development in light of climate obligations. Focusing on regional airport development and the review of planning approvals for expansion at Bristol, Southampton
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C v D: A Missed Opportunity to Clarify the Distinction Between Jurisdiction and Admissibility The Modern Law Review (IF 1.54) Pub Date : 2024-01-14 Shaun Matos
The distinction between issues of jurisdiction and admissibility is at the heart of arbitration law due to the role it plays in defining the relationship between tribunals and the courts of the seat. Nevertheless, there has long been controversy as to the foundation of the distinction and on which side of the line the issue of alleged non-compliance with pre-arbitration steps falls. C v D offered a
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Natural Rights, Constituent Power, and the Stain of Constitutionalism The Modern Law Review (IF 1.54) Pub Date : 2023-12-31 Raffael N. Fasel
The power to make constitutions (the so-called constituent power) is predominantly understood today as a legally unlimited power belonging to the people. This understanding sits uncomfortably with constitutionalism: the idea that public powers are legally limited. Would such a power not leave an indelible blemish on constitutions that are otherwise committed to constitutionalism? This article shows
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Ways of Explaining Law The Modern Law Review (IF 1.54) Pub Date : 2023-12-29 Dan Priel
Julie Dickson, Elucidating Law, Oxford: Oxford University Press, 2022, 208 pp, hb £87.00
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Judging Under Authoritarianism The Modern Law Review (IF 1.54) Pub Date : 2023-12-12 Julius Yam
Authoritarianism has significant implications for how judges should discharge their duties. How should judges committed to constitutionalism conduct themselves when under authoritarian pressure? To answer this question, the article proposes a two-step adjudicative framework, documents a variety of judicial strategies, and proposes how principles and strategies can and should be incorporated into the
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Police Use of Retrospective Facial Recognition Technology: A Step Change in Surveillance Capability Necessitating an Evolution of the Human Rights Law Framework The Modern Law Review (IF 1.54) Pub Date : 2023-12-11 Daragh Murray
Retrospective facial recognition (RFR) marks a step change in police surveillance capability that has received surprisingly little attention to-date. As the legal issues surrounding RFR are uncertain, and as legal challenge is likely, this article makes four key contributions. First, the surveillance capability made possible by RFR is set out. Second, human rights harms associated with RFR are examined
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A New Definition of ‘Treasure’ under the Treasure Act 1996: Watershed Reform or Missed Opportunity? The Modern Law Review (IF 1.54) Pub Date : 2023-12-08 Chris Bevan
A new definition of ‘treasure’ under the Treasure Act 1996 has been introduced by the UK Government providing for a significant change to our understanding of what legally constitutes ‘treasure’ in England, Wales and Northern Ireland. The Treasure Act 1996, which the new law amends, supports the preservation and protection of important archaeological finds for the benefit of the public, and this new
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Discrimination at the Interface: The Equality Act 2010 and Platform Interface Design The Modern Law Review (IF 1.54) Pub Date : 2023-11-22 Jed Meers
Given their dominance in a range of sectors – from private renting to job search – the design of online platforms can impede access to markets and facilitate discrimination. Most legal scholarship on the equality implications of platform design focuses on algorithms. This paper instead interrogates the comparatively neglected issue of interface design. It argues that two areas of interface design –
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The New Responsive Constitutionalism The Modern Law Review (IF 1.54) Pub Date : 2023-11-22 Rosalind Dixon
Ideas of responsive law and regulation have been the subject of sustained scholarly attention but only recently have scholars turned their attention to what these ideas mean for constitutional law and governance. The article addresses this gap in the literature by exploring the idea of responsiveness in constitutional design and interpretation. It suggests that the idea of responsive constitutionalism points
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Judicial Biography in the National Security Constitution: Lord Diplock and a ‘Rather Silly Little Secret Racket’ The Modern Law Review (IF 1.54) Pub Date : 2023-11-21 Paul F. Scott
This article considers the extra-judicial work of Lord Diplock in the domain of national security in the context of his life and judicial work. It first considers briefly the role of judicial biography in understanding the work of judges and then the particular considerations which apply to such biography in the context of national security law and practice. The following sections consider Lord Diplock's
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New Reproductive Technologies and Genetic Relatedness The Modern Law Review (IF 1.54) Pub Date : 2023-10-26 Rosamund Scott
At the heart of the use of assisted reproductive technologies (ARTs) is the attempt to realise a commonly anticipated future – the opportunity, if desired, to create and raise a genetically related child. For some, existing ARTs cannot assist, yet upcoming ones such as in vitro derived gametes (IVGs) may do so. However, the desire for genetically related children is frequently critiqued in debates
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New Reproductive Technologies and Genetic Relatedness The Modern Law Review (IF 1.54) Pub Date : 2023-10-26 Rosamund Scott
At the heart of the use of assisted reproductive technologies (ARTs) is the attempt to realise a commonly anticipated future – the opportunity, if desired, to create and raise a genetically related child. For some, existing ARTs cannot assist, yet upcoming ones such as in vitro derived gametes (IVGs) may do so. However, the desire for genetically related children is frequently critiqued in debates
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CORRIGENDUM The Modern Law Review (IF 1.54) Pub Date : 2023-10-24
Corrigendum to Conall Mallory, ‘Rights-Restricting Rhetoric: The Overseas Operations (Service Personnel and Veterans) Act 2021’ (2022) 85 Modern Law Review 461-487. https://doi.org/10.1111/1468-2230.12718 Following the original publication, the author would like to update the sentence on page 468 (line 2) and footnote 44. The sentence should read as follows: ‘The lawyer who had brought that litigation
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The View from the Top: Visual Intrusion as Nuisance in Fearn v Tate Gallery The Modern Law Review (IF 1.54) Pub Date : 2023-10-24 Jeevan Hariharan
In Fearn v Board of Trustees of the Tate Gallery the UK Supreme Court unanimously held that visual intrusions are in principle actionable under the tort of private nuisance. On the facts, a narrow 3:2 majority found that the Tate Modern was liable for the operation of its viewing gallery where the public could see into the claimants’ flats. This note argues that the court's landmark determination on
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Zalewski and the Future of Irish Public Law The Modern Law Review (IF 1.54) Pub Date : 2023-10-19 Tom Hickey
Irish judges have tended to ‘jealously guard’ the judicial power, vested as it is by Article 34.1 of the Constitution in the courts alone. And they have jealously guarded their control over the articulation of public law norms. It is they who get to decide what counts as fair procedure in this or that non-judicial body – not the non-judicial actors operating at the coalface. But in Zalewski v Workplace
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Hauptpersonalrat der Lehrerinnen: Article 88 GDPR and the Interplay between EU and Member State Employee Data Protection Rules The Modern Law Review (IF 1.54) Pub Date : 2023-10-19 Halefom H. Abraha
On 30 March 2023, the European Court of Justice ruled for the first time on the interpretation of Article 88 GDPR, which gives Member States the power to provide for more specific rules on employee data processing. In response to a request from the Administrative Court of Wiesbaden (Hauptpersonalrat der Lehrerinnen) concerning the live streaming of video classes, the CJEU found the German law regulating
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Trial by Cognitive Ordeal: Irrational Approaches to the Opinions of Investigators, Trial Integrity and Proof The Modern Law Review (IF 1.54) Pub Date : 2023-10-12 Gary Edmond
This article suggests that lawyers and judges may not understand the effects of their rules and procedures upon the production of evidence and its evaluation in criminal trials and appeals. Focusing on case studies involving the opinions of police officers and other investigators, as well as experts, it explains how applicable rules, procedures and safeguards did not produce, and appear incapable of
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Machine Learning and the Re-Enchantment of the Administrative State The Modern Law Review (IF 1.54) Pub Date : 2023-10-08 Eden Sarid, Omri Ben-Zvi
Machine learning algorithms present substantial promise for more effective decision-making by administrative agencies. However, some of these algorithms are inscrutable, namely, they produce predictions that humans cannot understand or explain. This trait is in tension with the emphasis on reason-giving in administrative law. The article explores this tension, advancing two interrelated arguments.
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Machine Learning and the Re-Enchantment of the Administrative State The Modern Law Review (IF 1.54) Pub Date : 2023-10-08 Eden Sarid, Omri Ben-Zvi
Machine learning algorithms present substantial promise for more effective decision-making by administrative agencies. However, some of these algorithms are inscrutable, namely, they produce predictions that humans cannot understand or explain. This trait is in tension with the emphasis on reason-giving in administrative law. The article explores this tension, advancing two interrelated arguments.
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Will the New UK Subsidy Control Regime Help ‘Level Up’ the Economy? The Modern Law Review (IF 1.54) Pub Date : 2023-10-05 Andreas Stephan
There is an emerging political consensus in the UK that greater devolution of spending powers will bring benefits in terms of reducing economic disparities between regions, enhancing social cohesion, and improving the economy's prospects for productivity, growth and the transition to net zero. The Subsidy Control Act 2022 is thought to be key to achieving this by providing public authorities with greater
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Communicating Censure: The Relevance of Conditions of Imprisonment at Sentencing and During the Administration of the Sentence The Modern Law Review (IF 1.54) Pub Date : 2023-10-04 Marie Manikis, Audrey Matheson
In common law, sentencing is chiefly concerned with the duration of a sentence and rarely engages in the conditions under which the sentence is served. Recently, courts in Canada and England and Wales have started to recognise the relevance of certain prison conditions when deciding sentences. These approaches, however, have lacked conceptual clarity and consistency. Building on communicative theories
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The Aims and Functions of Criminal Law The Modern Law Review (IF 1.54) Pub Date : 2023-10-03 Andrew Cornford
What are the aims and functions of criminal law? This question has recently been much debated. Unfortunately, however, the debate is difficult to assess, as what it means to call something an aim or function of criminal law remains unclear. This article therefore does two things. First, it examines what these competing claims about criminal law's aims and functions might mean. Most plausibly, it is
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The Aims and Functions of Criminal Law The Modern Law Review (IF 1.54) Pub Date : 2023-10-03 Andrew Cornford
What are the aims and functions of criminal law? This question has recently been much debated. Unfortunately, however, the debate is difficult to assess, as what it means to call something an aim or function of criminal law remains unclear. This article therefore does two things. First, it examines what these competing claims about criminal law's aims and functions might mean. Most plausibly, it is
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Reframing the English Foreign Act of State Doctrine The Modern Law Review (IF 1.54) Pub Date : 2023-09-29 Massimo Lando
This article proposes a way to reframe the English foreign act of State doctrine. The doctrine is an established rule of English common law but its contours and application remain ill-defined, despite the Supreme Court's restatement in Belhaj v Straw. The doctrine in its current form emerges from the accretion of precedents over some 350 years, but still lacks a unifying framework bringing its different
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A New Self-defence Framework for Domestic Abuse Survivors Who Use Violent Resistance in Response The Modern Law Review (IF 1.54) Pub Date : 2023-09-29 Vanessa Bettinson, Nicola Wake
This article criticises the government's rejection of proposals by the Prison Reform Trust that would have extended self-defence in householder cases to victims/survivors of domestic abuse. The authors argue that the Prison Reform Trust proposals should be enacted, and further supported by novel complementary reform of the option to retreat, and the exclusion of intoxicated mistaken belief in self-defence
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Reframing the English Foreign Act of State Doctrine The Modern Law Review (IF 1.54) Pub Date : 2023-09-29 Massimo Lando
This article proposes a way to reframe the English foreign act of State doctrine. The doctrine is an established rule of English common law but its contours and application remain ill-defined, despite the Supreme Court's restatement in Belhaj v Straw. The doctrine in its current form emerges from the accretion of precedents over some 350 years, but still lacks a unifying framework bringing its different
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The Evolution of Birth Registration in England and Wales and its Place in Contemporary Law and Society The Modern Law Review (IF 1.54) Pub Date : 2023-09-25 Liam Davis
Birth registration, especially the birth certificate, is consistently framed as something which has always operated to document a person's parents and their (biogenetic) ‘origins’. This framing has become more prominent in recent years with the rise in (often queer) families challenging how law should register their families, often being unsuccessful. Analysing the history of birth registration, though
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Shazam v Only Fools and Horses: A Critique of the Classification of Literary or Dramatic Characters as Independent Copyright Works The Modern Law Review (IF 1.54) Pub Date : 2023-08-21 Jani McCutcheon
In Shazam Productions Ltd v Only Fools The Dining Experience Ltd Shazam sought to prevent the appropriation of the central character ‘Del Boy’ from the popular British television series Only Fools and Horses by an unauthorised interactive live show called ‘Only Fools The (Cushty) Dining Experience’ in which actors adopted the mannerisms, voices and catch phrases of the Only Fools characters. The Intellectual
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Discrimination in Abortion Law and the Message the Law is Sending: R (Crowter) v Secretary of State for Health and Social Care The Modern Law Review (IF 1.54) Pub Date : 2023-08-18 Heloise Robinson
R (Crowter) v Secretary of State for Health and Social Care involved a legal challenge to the law on abortion under the Abortion Act 1967, on the basis that the disability ground ‘expresses’ a negative message about disabled people, based on negative stereotyping, and that this expression is incompatible with Articles 8 and 14 of the European Convention on Human Rights. The case is significant because
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Authenticity and Identity in Adolescent Decision-Making The Modern Law Review (IF 1.54) Pub Date : 2023-08-15 Cressida Auckland
While much criticism has surrounded the seemingly incoherent law governing decision-making for adolescents, relatively little work has sought to address the question of whether and when adolescents will be acting autonomously in decisions to refuse treatment, particularly in cases where their choices are motivated by religious beliefs inculcated from a young age. This is important, not just because
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Contesting Housing Inequality: Housing Rights and Social Movements The Modern Law Review (IF 1.54) Pub Date : 2023-07-29 Mark Jordan
This article engages with a leading contemporary criticism of social and economic human rights, namely that because such rights are organised around sufficiency norms, they are ill-equipped to challenge and overturn forms of material inequality. The sufficiency thesis raises issues around the nature of social rights and their capacity to deliver transformative change, and lays a direct challenge to
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Reasonableness in Capacity Law The Modern Law Review (IF 1.54) Pub Date : 2023-06-28 Binesh Hass
It is not uncommon for people to hold bizarre views. Sometimes, these views appear before the courts in mental capacity cases. Judges must then decide if the views are so bizarre that they constitute evidence of incapacity or, instead, if those views are the everyday sort that do not constitute such evidence. The idea behind the distinction is that the everyday sort can be false but, in some important
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Increasing the Powers of the Secretary of State for the Home Department to Strip Individuals of their British Citizenship: R (on the application of Begum) v SSHD The Modern Law Review (IF 1.54) Pub Date : 2023-06-14 Ayesha Riaz
In R (on the application of Begum) v Secretary of State for the Home Department, Ms Shamima Begum was deprived of her British citizenship by the Secretary of State for the Home Department, as she had chosen to flee to Syria, and aligned herself with Islamic State of Iraq and Levant. To safeguard the UK's national security, the Supreme Court held that Ms Begum could not return to the UK to challenge
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Reconciling Contract Law's Objective and Subjective Standards The Modern Law Review (IF 1.54) Pub Date : 2023-06-13 Nick Sage
Although the common law of contract is often said to favour ‘objectivity’, it sometimes seems to adopt a ‘subjective’ standard. The apparent tendency to switch between rival standards troubles many contract scholars. In response, some seek to vindicate objectivity alone as the one true standard. Others propose a single abstract theoretical rationale that can allegedly encompass both standards. I suggest
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‘Palm Tree Justice’: The Inherent Jurisdiction in Adult Welfare Cases The Modern Law Review (IF 1.54) Pub Date : 2023-06-07 Laura Pritchard-Jones
The Mental Capacity Act 2005 provides the legal framework governing what practitioners can do, and when, where it is believed someone's capacity to make decisions is compromised by a disturbance in the functioning of the mind or the brain. In 2012 the Court of Appeal in the case of DL v A Local Authority identified a lacuna in that no legal regime existed to intervene in situations where a person did
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A Legal Framework for Using Smart Contracts in Consumer Contracts: Machines as Servants, Not Masters The Modern Law Review (IF 1.54) Pub Date : 2023-06-06 Mateja Durovic, Chris Willett
Smart contracts, as a newly developed technology, may radically re-shape traditional contractual relationships, transferring the power to perform and enforce from contractors to robots. This paper provides a framework which seeks to ensure that this transfer of power does not undermine vital consumer law values. The starting point is the well-accepted idea of consumer law being based on values aiming
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Promises in Equity and at Law: Proprietary Estoppel after Guest v Guest The Modern Law Review (IF 1.54) Pub Date : 2023-06-01 Alexander Waghorn
Under the doctrine of proprietary estoppel, a promise made to another that they will acquire a right in the promisor's land can give rise to a legal remedy, if the promisee has detrimentally relied on that promise. In Guest v Guest, the Supreme Court was asked to settle a long-running debate about how judges should go about fashioning that remedy. The Court held that the claimant's award should be
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The Human Fertilisation and Embryology Act 1990 and Non-Traditional Families The Modern Law Review (IF 1.54) Pub Date : 2023-05-30 Kirsty Horsey, Emily Jackson
There is now a broad consensus that reform of the Human Fertilisation and Embryology Act 1990, as amended, has become necessary. Our focus in this legislation article is not on whether the Act needs to be reformed, but on the narrower question of whether the regulation of fertility treatment in the UK does enough to protect the interests of non-traditional families. The 2008 reforms to the original
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Animals and Nature as Rights Holders in the European Union The Modern Law Review (IF 1.54) Pub Date : 2023-05-24 Yaffa Epstein, Eva Bernet Kempers
This article argues that EU law can be interpreted to support the current existence of legal rights for animals and nature. While these rights have not been explicitly recognised in law, the prerequisites for doing so already exist in the EU legal order. The theoretical justifications for the protection of animals and nature differ, but the protection of both may benefit from a rights approach. Further
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Human Trafficking: Iconic Victims, Folk Devils and the Nationality and Borders Act 2022 The Modern Law Review (IF 1.54) Pub Date : 2023-05-21 Jason Haynes
On 28 April 2022, the Westminster Parliament passed the controversial Nationality and Borders Act. The Act is the single biggest overhaul of the UK's immigration system in decades. The Act aims to deter illegal entry into the UK; remove more easily those with no right to be in the UK; and increase the overall fairness of the system. Notwithstanding these seemingly laudable objectives, however, this
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Countering Terrorism in the Family Courts: A Dangerous Development The Modern Law Review (IF 1.54) Pub Date : 2023-05-18 Fatima Ahdash
This article critically appraises the implications of the recent emergence of radicalisation cases in the family courts of England and Wales and the involvement of the family justice system in preventing and countering terrorism. It identifies, and takes issue with, a dominant narrative found in case-law, practitioner commentaries, think-tank reports and academic and government literature, which regards
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The Charities Act 2022 and its Dissuasive Effects on Donors The Modern Law Review (IF 1.54) Pub Date : 2023-05-04 John Picton
The Charities Act 2022 is the product of a report, Technical Issues in Charity Law, by the Law Commission. It is argued that certain headline reforms in the legislation should not be understood as merely technical. In order to give that claim an objective meaning, a frame for analysis is adopted – it is seen that the reform package has a dissuasive effect on donors. That means, all other things being
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Fiat v Commission: A Misconception at the Heart of the Tax Ruling Cases The Modern Law Review (IF 1.54) Pub Date : 2023-04-19 Stephen Daly
In October 2015, a ripple was sent through the tax world when the European Commission found that Luxembourg and the Netherlands had provided unlawful State aid to Fiat and Starbucks. At the core of the Commission's decisions was the assertion that the Member States had misapplied the ‘arm's length principle’ - a principle which broadly seeks to ensure that transactions between associated enterprises
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Ordoliberalism: What We Know and What We Think We Know The Modern Law Review (IF 1.54) Pub Date : 2023-04-14 Matthew Cole, Sören Hartmann
This article draws on direct archival evidence from the Committee responsible for drafting the Gesetz gegen Wettbewerbsbeschränkungen 1957 (GWB) to establish what the priorities and beliefs of the Ordoliberals (broadly construed) were during the mid- to late-1950s. This is done primarily by analysing the views expressed by Franz Böhm, Finance Minister Ludwig Erhard and Alfred Müller-Armack. This work
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DeFi Common Sense: Crypto-backed Lending in Janesh s/o Rajkumar v Unknown Person (‘CHEFPIERRE’) The Modern Law Review (IF 1.54) Pub Date : 2023-03-29 Timothy Chan, Kelvin F.K. Low
One of the selling points of cryptoassets has been the ability to subject them to so-called ‘smart contracts’ embedded upon blockchains; yet, despite numerous common law decisions accepting cryptoassets as property, until Janesh s/o Rajkumar v Unknown Person (‘CHEFPIERRE’) no courts have had the occasion to consider how such property (in this case, an NFT) interact with these ‘smart contracts’. The
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Employment Status and Human Rights: An Emerging Approach The Modern Law Review (IF 1.54) Pub Date : 2023-03-28 Joe Atkinson
The question of who falls within the ‘personal scope’ of employment law is of fundamental importance to the field but remains highly contested. This article makes a novel contribution by examining the implications of human rights in this context and advocating a fundamental shift in the courts’ approach to personal scope. It suggests that where employment legislation functions to protect human rights
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Consent in Contracts of Employment The Modern Law Review (IF 1.54) Pub Date : 2023-03-24 Maayan Niezna, Guy Davidov
This article considers the problem of questionable consent in contracts of employment. We suggest that in the context of employment, consent should be understood as a continuum that includes some level of coercion and some level of choice. We show that despite labour law's assumption of inequality of bargaining power, consent is still legally valid in various contexts of employment. We propose some
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Armstead v Royal Sun Alliance Insurance Company Ltd: The Interface between The Winkfield and Conarken The Modern Law Review (IF 1.54) Pub Date : 2023-03-14 Yeqiu (Dan) Huang
In Armstead v Royal Sun Alliance Insurance Company Ltd, the Court of Appeal considered the limits of the ‘proprietary fiction’ established by The Winkfield, allowing bailees to recover loss through their possessory title of bailment property against a wrongdoer. Despite the decision being defensible on its facts, the Court of Appeal failed to clarify: (i) whose consequential loss the bailee can recover
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Expertise, Public Health and the European Convention on Human Rights: Vavřička v Czech Republic The Modern Law Review (IF 1.54) Pub Date : 2023-03-06 Rebekah McWhirter, Martin Clark
In Vavřička v Czech Republic, the European Court of Human Rights held that the Czech Republic's childhood vaccination policy did not contravene the Article 8 right to private life. This note presents a rhetorical and contextual analysis of the Court's engagement with questions of expertise. The majority's application of a wide margin of appreciation avoided grappling with the details of scientific
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Skeleton Keys to Hospital Doors: Adolescent Adults who Refuse Life-Sustaining Medical Treatment The Modern Law Review (IF 1.54) Pub Date : 2023-03-02 Emma Cave, Hannah Cave
We consider how the sufficiency of young adults’ autonomy is judged in light of biological, social and psychological evidence that adolescence can continue into the mid 20s. Until then, adolescent adults are prone to developmental immaturity which can affect risk taking, impulsivity, and independence in decision making. Some areas of law are starting to accommodate the impacts of adolescence into adulthood
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Presumptions of Legislative Intent in R (Coughlan) v Minister for the Cabinet Office The Modern Law Review (IF 1.54) Pub Date : 2023-02-20 Luciana Morón
In R (Coughlan) v Minister for the Cabinet Office, the UK Supreme Court held that the Minister for the Cabinet Office acted lawfully when making orders which introduced, as a pilot scheme, a requirement for voter identification in local government elections in certain local authority areas. The case turned on the interpretation of section 10 of the Representation of the People Act 2000, pursuant to
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Chilling and Warming Effects on the Production of Legal Scholarship The Modern Law Review (IF 1.54) Pub Date : 2023-02-20 Stewart Manley
How do legal scholars decide what to write about? I hope that most of us try to write about what interests us or what benefits society. In this article though, I suggest that more insidious influences chill and warm our interest in research topics. I reflect on some sources of these chilling and warming effects in my own research environment – specifically, the implicit intimidation of power and the
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Intersex Interventions as Human Rights Violations: The European Court of Human Rights Sets Out Guiding Principles in M v France The Modern Law Review (IF 1.54) Pub Date : 2023-02-14 Daniela Alaattinoğlu
In 2022, the European Court of Human Rights, for the first time, signalled that it regards non-consensual interventions on intersex individuals which are not motivated by medical necessity as human rights violations. This case note argues that the admissibility decision in question, M v France, albeit ruled inadmissible on procedural grounds, constitutes an important step towards binding supranational
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What's Choice Got to Do With It? Addressing the Pitfalls of Using Choice-Architecture Discourse Within Poverty Law The Modern Law Review (IF 1.54) Pub Date : 2023-02-09 Yael Cohen-Rimer
In legal scholarship, as in other fields, it would seem that ‘choice-architecture’ (where states attempt to ‘move’ people toward desired behaviour) is everywhere. This paper argues that such blanket adoption of choice-architecture discourse cannot be based on generic terms, nor on imagined or assumed choices. Rather, I contend, the specific characteristics of each legal field – here, poverty law –
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Coercive Human Rights and the Forgotten History of the Council of Europe's Report on Decriminalisation The Modern Law Review (IF 1.54) Pub Date : 2023-02-01 Mattia Pinto
What if the European Court of Human Rights (ECtHR), instead of developing a ‘coercive human rights doctrine’ concerning state duties to criminalise serious human rights violations, had focused on decriminalisation? The ECtHR has never developed a coherent case law on protecting human rights by removing, rather than adding, criminal regulation. This article returns to a largely forgotten moment in 1980
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Making Law Possible The Modern Law Review (IF 1.54) Pub Date : 2023-01-25 Sebastian Lewis
Paolo Sandro, The Making of Constitutional Democracy: From Creation to Application of Law, Oxford: Hart Publishing, 2022, 317 pp, pb £59.50.
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A Performative Theory of Judicial Dissent The Modern Law Review (IF 1.54) Pub Date : 2023-01-22 Hemi Mistry
This article introduces a ritual theory of judicial dissent. Conventional accounts of the functions of judicial dissent, whether in the context of domestic or international judicial systems, can be grouped into three thematic categories: ‘dissent as transparency’, ‘dissent as opposition’ and ‘dissent as conscience’. Leaving aside the disagreement over whether judicial dissent should be institutionalised