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CONSTITUTIONAL VALUES IN THE COMMON LAW OF OBLIGATIONS Camb. Law J. (IF 1.909) Pub Date : 2024-04-03 Philip Sales
“Constitutional values” is a term which appears to relate to concepts of what is now called public law. By constitutional values, I mean the basic ideas and interests which structure relations between the individual and the state, and the obligations to which they give rise, which underlie the common law and to which it gives recognition in more or less articulated forms. These are ideas and interests
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ON TRUSTS, HYPOCRISY AND CONSCIENCE Camb. Law J. (IF 1.909) Pub Date : 2024-04-03 Irit Samet
In this paper, I suggest that taking seriously the way in which the trust is founded on a duty of conscience has far-reaching ramifications for the appropriate attitude towards new forms of trusts that are designed to allow people to enjoy the benefits of ownership without incurring the duties that come with it. The morally freighted concept of conscience that lies at the heart of trust law means that
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UNPACKING PACCAR: STATUTORY INTERPRETATION AND LITIGATION FUNDING Camb. Law J. (IF 1.909) Pub Date : 2024-03-20 Rachael Mulheron
In the most important funding decision in 20 years, the UK Supreme Court has declared in R. (PACCAR Inc. and others) v Competition Appeal Tribunal and others [2023] UKSC 28, [2023] 1 W.L.R. 2594 that, as a matter of statutory interpretation, a third-party funder’s litigation funding agreement (LFA) is a damages-based agreement (DBA) because third-party funders are offering “claims management services”
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ENSURING CONSUMERS “GET WHAT THEY WANT”: THE ROLE OF TRADEMARK LAW Camb. Law J. (IF 1.909) Pub Date : 2024-02-06 Graeme B. Dinwoodie
This Article considers how trademark law should interpret the commitment in legislative history to the 1946 (US) Lanham Act that one of the principal purposes of trademark law is “to protect the public so that it may be confident that, in purchasing a product bearing a particular trademark which it favorably knows, it will get the product which it asks for and which it wants to get”. It looks back
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ESPIONAGE LAW IN THE UK AND AUSTRALIA: BALANCING EFFECTIVENESS AND APPROPRIATENESS Camb. Law J. (IF 1.909) Pub Date : 2023-12-22 Sarah Kendall
This article engages in a comparative analysis of espionage law in the UK and Australia to determine whether the laws in each country are effective and appropriate. It finds that, while the espionage laws in both countries are largely capable of effectively addressing modern espionage, this has come at the expense of appropriateness – specifically, aspects of the laws in both jurisdictions are complex
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REGULATING USE BY LAW ENFORCEMENT AUTHORITIES OF LIVE FACIAL RECOGNITION TECHNOLOGY IN PUBLIC SPACES: AN INCREMENTAL APPROACH Camb. Law J. (IF 1.909) Pub Date : 2023-12-11 Asress Adimi Gikay
Amid the growing calls for the complete prohibition of the use by law enforcement authorities of live facial recognition (LFR) technology in public spaces, this article advocates for an incremental approach to regulating the use of the technology. By analysing legislative instruments, judicial decisions, deployment practices of UK law enforcement authorities, various procedural and policy documents
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RECYCLED MALICE Camb. Law J. (IF 1.909) Pub Date : 2023-11-06 Findlay Stark
The criminal law doctrine of “transferred malice” has been much discussed. What has gone comparatively unnoticed is the phenomenon of “recycled malice”. For example, those who endorse transferred malice would hold that, if D tries to shoot V, and the shot misses and hits T, D’s intention to hit V is “transferred” to T, and a completed offence against T is constructed. But many legal systems that endorse
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RELATIONAL TRADE NETWORKS Camb. Law J. (IF 1.909) Pub Date : 2023-11-03 Ilias Ioannou
This paper argues that in platform-based digitalisation of international trade processes, the use of blockchain instead of a central database system does not by itself adequately address the platform provider’s potential to engage in opportunistic behaviour. Digital transformation of international trade is, thus, constrained by hold-up problems. This requires embedding governance mechanisms in platform
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SECTION 36 OF THE LIMITATION ACT 1980 Camb. Law J. (IF 1.909) Pub Date : 2023-10-16 Paul S. Davies
The law concerning limitation periods has long been recognised to be unsatisfactory. One area which poses particular problems concerns whether a limitation period can apply to equitable claims “by analogy” under section 36 of the Limitation Act 1980. This article considers three relatively recent decisions of the Court of Appeal – P & O Nedlloyd BV v Arab Metals Co. (The UB Tiger) [2006] EWCA Civ 1717
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THE UK INTERNAL MARKET: A GLOBAL OUTLIER? Camb. Law J. (IF 1.909) Pub Date : 2023-09-15 Jan Zglinski
The new UK internal market, as embodied in the UK Internal Market Act 2020 and the common frameworks, is the latest example of market integration, but it is far from being the only one. A myriad of composite market structures exists across the world, including in Australia, Canada, Germany, Spain, Switzerland, the US and the EU. This article investigates how the UK internal market compares to other
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WEDNESBURY UNREASONABLENESS Camb. Law J. (IF 1.909) Pub Date : 2023-08-03 Adam Perry
Administrative decisions are unlawful if they are unreasonable, in the sense that Associated Provincial Picture Houses Ltd. v Wednesbury Corporation made famous. What is Wednesbury unreasonableness, precisely? Courts have not clearly said, and existing academic answers are flawed. Here I propose a new answer. My claim, roughly, is that a Wednesbury unreasonable decision is one that a court is entitled
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WHAT IS THE HARM IN ADDICTION? AUTONOMY, VULNERABILITY, AND THE CASE FOR HARM REDUCTION DRUG POLICY Camb. Law J. (IF 1.909) Pub Date : 2023-06-16 Mathieu Doucet, Lindsey Brooke Porter
Successful drugs policy must be driven by thoughtful principle and intergovernmental consensus, not by departmental or legal inertia, nor by public (mis)conceptions about drug use. Perhaps the most pressing choice for drugs policymakers at present is between harm reduction and abstinence approaches to drugs policy. To choose between these two approaches, we need to know addiction's normative status:
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THE ILLEGALITY DEFENCE AND SANCTION-SHIFTING: IN DEFENCE OF GRAY V THAMES TRAIN LTD Camb. Law J. (IF 1.909) Pub Date : 2023-06-09 Ivan Sin
This article considers the rule that a claimant who has been wronged will be denied recovery where the damage flowed from a sanction imposed as a result of their own illegal acts such that compensating the claimant would divert a sanction intended to be imposed on the claimant to the defendant. The article has two purposes. The first aim is to provide a counterweight to the overwhelming body of academic
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THE NORTH BRITON NO. 45 AND THE DOCTRINAL ORIGINS OF EXEMPLARY DAMAGES Camb. Law J. (IF 1.909) Pub Date : 2023-06-09 Nicholas Sinanis
The companion 1763 tort cases of Huckle v Money and Wilkes v Wood hold a mythical status in the Anglo-American common law imagination. Few modern accounts of the doctrinal origins of exemplary (or punitive) damages omit reference to them. This article contends that the assumption that these two cases combined to provide damages above and beyond compensation a positive basis at English common law is
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PREVENTING THE INFINITE REGRESS: DISCRETION, BARS TO RELIEF AND THE STRUCTURE OF EQUITY Camb. Law J. (IF 1.909) Pub Date : 2023-06-08 Nicholas A. Tiverios
A growing body of literature has emphasised the role of equity as a body of second order principles. These scholars argue that what makes equity distinct is that it assumes a particular outcome at common law, but then controls or disables one party's insistence on her legal entitlements. Where do equitable bars to relief fit within such accounts? This article argues that equitable bars to relief fit
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CONSTITUTIONALISM AT COMMON LAW: THE RULE OF LAW AND JUDICIAL REVIEW Camb. Law J. (IF 1.909) Pub Date : 2023-05-22 T.R.S. Allan
UK public law is often viewed as a sophisticated power struggle between rival institutions, an approach encouraged by the assumption that the law is ultimately dependent on such contingencies as the existence of an official consensus about its sources. From that perspective, legal judgments should be read as strategic moves within the political power-game. We can make better sense of public law if
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THE UNEXPLORED CONTRACT AND INSOLVENCY LAW DIMENSIONS OF HEDLEY BYRNE V HELLER Camb. Law J. (IF 1.909) Pub Date : 2023-04-26 David Campbell, David Milman
It has been argued in previous work that Hedley Byrne v Heller addressed no actual mischief. In the case itself, the defendant's credit reference about Easipower Ltd. was neither a misstatement nor negligently given, and in general the indemnification of reliance on negligent statements is far better regulated by contract than it can possibly be by negligent misstatement. This paper expands on the
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RETHINKING RISK-TAKING: THE DEATH OF VOLENTI? Camb. Law J. (IF 1.909) Pub Date : 2023-01-16 Jodi Gardner
Volenti non fit injuria allows a negligent defendant to escape liability by showing that the claimant voluntarily and willingly accepted the risk in question. This article combines the theoretical limitations of the volenti defence with a case analysis of how its application has played out in the “real world”, and argues it is not fit for modern tort law. The defence has a controversial and chequered
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CONTRACT AS PROPERTY: TRIANGLES AND TRAGIC CHOICES Camb. Law J. (IF 1.909) Pub Date : 2023-01-10 Michael J.R. Crawford
According to the “Inadequacy Thesis”, the law's refusal to extend the tort of conversion to interferences with contractual rights is evidence of systemic ossification and proof of its failure to protect the most valuable asset class in the modern economy. Whilst it is true that, like chattels, the benefit of contractual rights can be usurped by third parties, transforming such rights into objects of
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JUSTIFYING CONCURRENT CLAIMS IN PRIVATE INTERNATIONAL LAW Camb. Law J. (IF 1.909) Pub Date : 2023-01-06 Sagi Peari, Marcus Teo
Can claimants choose between contract and tort claims arising on the same facts with different jurisdictional and/or choice-of-law consequences? While domestic legal systems generally recognise concurrent liability, commentators object that its extension to private international law would be unprincipled and would threaten the field's values. This, however, contrasts with the position in common law
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QUISTCLOSE TRUSTS FROM A CORPORATE INSOLVENCY PERSPECTIVE: A POSITIVE AND NORMATIVE ANALYSIS Camb. Law J. (IF 1.909) Pub Date : 2022-12-12 Adam S. Hofri-Winogradow, Gal David
Leading cases show Quistclose trusts being used by companies nearing insolvency. Their use in this context raises serious normative problems: it may prefer the beneficiary to the company's other creditors, and creates a misleading impression that trust funds are in fact free of trust. Building on the emergent normative literature on Quistclose trusts, we first examine which Quistclose trusts are currently
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DISCERNING THE FORM AT THE SECOND STAGE OF VICARIOUS LIABILITY Camb. Law J. (IF 1.909) Pub Date : 2022-11-07 Christine Beuermann
This article uses Atiyah and Summer's categorisation of the attributes of formal legal reasoning in Form and Substance in Anglo-American Law to examine the type of legal reasoning process used by the courts in England and Wales when determining the second stage of vicarious liability. The analysis shows that, although remaining formal in nature, the shift away from the Salmond test has resulted in
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THE CORNERSTONE OF OUR LAW: EQUALITY, CONSISTENCY AND JUDICIAL REVIEW Camb. Law J. (IF 1.909) Pub Date : 2022-09-22 Michael Foran
Equality before the law is a foundational principle of the common law and is of particular importance for administrative law, given the connection between judicial review and the rule of law. Analysis as to the precise requirements of this principle can help us better to understand the role that obligations to act consistently play within judicial review. This article will examine whether consistency
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RECOGNISING STATE BLAME IN SENTENCING: A COMMUNICATIVE AND RELATIONAL FRAMEWORK Camb. Law J. (IF 1.909) Pub Date : 2022-09-22 Marie Manikis
Censure, blame and harms are central concepts in sentencing that have evolved over the years to take into account social context and experiential knowledge. Flexibility, however, remains limited as the current analysis in sentencing focuses on the offender while failing to engage with the state's contribution in creating wrongs and harms. This risks giving rise to defective practices of responsibility
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A LEGAL FRAMEWORK FOR ARTIFICIAL INTELLIGENCE FAIRNESS REPORTING Camb. Law J. (IF 1.909) Pub Date : 2022-09-16 Jia Qing Yap, Ernest Lim
Clear understanding of artificial intelligence (AI) usage risks and how they are being addressed is needed, which requires proper and adequate corporate disclosure. We advance a legal framework for AI Fairness Reporting to which companies can and should adhere on a comply-or-explain basis. We analyse the sources of unfairness arising from different aspects of AI models and the disparities in the performance
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SECRET CUSTOM or THE IMPACT OF JUDICIAL DELIBERATIONS ON THE IDENTIFICATION OF CUSTOMARY INTERNATIONAL LAW Camb. Law J. (IF 1.909) Pub Date : 2022-09-14 Massimo Lando
The literature on the identification of rules of customary international law is extensive. Commentators have focused on isolating the methodologies by which international courts and tribunals identify customary international law, with most of the debate revolving around the use of induction, or deduction and assertion as methods of custom identification. However, the existing literature has overlooked
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NOVATION AND ADVANCE CONSENT Camb. Law J. (IF 1.909) Pub Date : 2022-09-12 Kwan Ho Lau
Professor Goode once observed that “Novation need not be left to ad hoc agreement; it is open to the parties to provide for it in advance and in particular to establish a contractual mechanism by which novation takes place automatically on the occurrence of a designated act or event”. This deceptively straightforward proposition is examined in the present article. It explores the legal footing for
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PRIVATE CENSORSHIP AND STRUCTURAL DOMINANCE: WHY SOCIAL MEDIA PLATFORMS SHOULD HAVE OBLIGATIONS TO THEIR USERS UNDER FREEDOM OF EXPRESSION Camb. Law J. (IF 1.909) Pub Date : 2022-08-26 Stefan Theil
Contemporary liberal accounts of free expression are almost exclusively preoccupied with the permissible exercises of state power. Influenced by this framing, free expression guarantees under the ECHR, as well as the US and German Constitutions, focus on protecting a private sphere from state interference: what happens within that sphere is only of peripheral concern. This approach is deeply unsatisfactory
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ADDRESSING VACCINE INEQUITY DURING THE COVID-19 PANDEMIC: THE TRIPS INTELLECTUAL PROPERTY WAIVER PROPOSAL AND BEYOND Camb. Law J. (IF 1.909) Pub Date : 2022-06-16 Siva Thambisetty, Aisling McMahon, Luke McDonagh, Hyo Yoon Kang, Graham Dutfield
This article examines global vaccine inequity during the COVID-19 pandemic. We critique intellectual property (IP) law under the 1994 WTO TRIPS Agreement, and specifically, the role that IP has played in enabling the inequities of production, distribution and pricing in the COVID-19 vaccine context. Given the failure of international response mechanisms, including COVAX and C-TAP, to address vaccine
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PARLIAMENTARY SOVEREIGNTY AND POPULAR SOVEREIGNTY IN THE UK CONSTITUTION Camb. Law J. (IF 1.909) Pub Date : 2022-06-01 Jeffrey Goldsworthy
Rivka Weill claims that in the nineteenth century the foundation of the UK constitution changed from parliamentary sovereignty to popular sovereignty, originally as a matter of constitutional convention but today as a matter of law. I argue, to the contrary, that parliamentary sovereignty as a legal principle and popular sovereignty as a political principle are perfectly compatible. Constitutional
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USE OF BIG DATA ANALYTICS AND SENSOR TECHNOLOGY IN CONSUMER INSURANCE CONTEXT: LEGAL AND PRACTICAL CHALLENGES Camb. Law J. (IF 1.909) Pub Date : 2022-05-30 Βarış Soyer
Insurers are increasingly using big data analytics and artificial intelligence in rating risks and customising insurance products particularly in the context of consumer insurance. The primary aim of this article is to elaborate the extent to which the legal rules in force could ensure that consumers are not treated unfairly as a result of the use of such disruptive technologies. Relevant insurance
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SETTLED PRACTICE IN STATUTORY INTERPRETATION Camb. Law J. (IF 1.909) Pub Date : 2022-05-09 Diggory Bailey
What use (if any) may be made of settled practice in statutory interpretation and what are the potential justifications for its use? Debate about the use of settled practice is often framed in terms of a tension between legal certainty, on the one hand, and legal correctness in giving effect to Parliament's will, on the other. That account presents a false choice. This article explores the use of settled
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THE NEW THINGS: PROPERTY RIGHTS IN DIGITAL FILES? Camb. Law J. (IF 1.909) Pub Date : 2022-04-12 Johan David Michels, Christopher Millard
This paper looks at the property status of digital files, such as electronic documents, under English law. We argue that, while mere information is rightly not considered property, digital files are not mere information. Instead, they are distinct virtual objects that exist at the logical – or software – layer of a computer system. Property law could recognise digital files as a new, third kind of
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TORT'S HIERARCHY OF PROTECTED INTERESTS Camb. Law J. (IF 1.909) Pub Date : 2022-03-03 John Murphy
It is widely accepted that tort law operates according to a hierarchy of protected interests. Some commentators suggest that this hierarchy can be put to dispositive uses in cases characterised by a clash of interests held respectively by the claimant and defendant (the inferior interest giving way). Others argue that thinking in terms of a hierarchy of interests sheds light on three unusual aspects
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THE SUPREME COURT'S DEFENCE OF UNQUALIFIED LAWMAKING POWER: PARLIAMENTARY SOVEREIGNTY, DEVOLUTION AND THE SCOTLAND ACT 1998 Camb. Law J. (IF 1.909) Pub Date : 2022-03-01 Mark Elliott,Nicholas Kilford
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A CAUSE WORTHY OF MORE EFFORT: THE COMMITTEE ON THE RIGHTS OF THE CHILD AND THE CLIMATE CHANGE DECISION Camb. Law J. (IF 1.909) Pub Date : 2022-03-01 Stefan Theil
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THE THIN END OF THE WEDGE: MORALITY, CONTRACT LAW AND LAWFUL ACT DURESS Camb. Law J. (IF 1.909) Pub Date : 2022-03-01 Jonathan Morgan
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Contract Law in Practice. By Neil Andrews. [Oxford University Press, 2021. lxiii + 764 pp. Hardback £250.00. ISBN 978-0-192-89794-7.] Camb. Law J. (IF 1.909) Pub Date : 2022-03-01 Kim Lewison
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A Pluralist Theory of Age Discrimination. By Stuart Goosey. [Oxford: Hart Publishing, 2021. xvi + 198 pp. Hardback £75.00. ISBN 978-1-50993-376-1.] Camb. Law J. (IF 1.909) Pub Date : 2022-03-01 Hugh Collins
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The Right of Redress. By Andrew S. Gold. [Oxford: Clarendon Press, 2020. xv + 230 pp. Hardback £70.00. ISBN 978-0-198-81440-5.] Camb. Law J. (IF 1.909) Pub Date : 2022-03-01 William Lucy
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KEEP OFF THE GRASS! NULLITY REVISITED IN THE SUPREME COURT Camb. Law J. (IF 1.909) Pub Date : 2022-03-01 Tom Hickman
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SIX QUESTIONS IN SEARCH OF A TORT: HAS THE SUPREME COURT TRANSFORMED NEGLIGENCE? Camb. Law J. (IF 1.909) Pub Date : 2022-03-01 David Howarth
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THE DEATH OF LAW: ANOTHER OBITUARY Camb. Law J. (IF 1.909) Pub Date : 2022-02-18 William Lucy
This essay argues that a defining characteristic of modern law – the distinctive way in which it judges its addressees – will disappear. After sketching the distinctive nature of modern law's judgment, I show that it is part of a broader regulatory paradigm (rule or East Coast regulation) which is itself being superseded. Technological management is the alternative regulatory paradigm and I examine
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PROPERTY, PRIORITY AND APPORTIONMENT: THE CASE OF THE ACQUISITION CREDITOR Camb. Law J. (IF 1.909) Pub Date : 2022-02-18 Aruna Nair
In Abbey National Building Society v Cann, the House of Lords held that a mortgagee who has funded the purchase of the mortgaged title to land (an “acquisition creditor”) has a right over the land that binds any other grantee of the purchaser. This article considers the basis for and limits of this principle, in light of its origins. It argues that the cases treat the lender's financial contribution
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THE LOGICAL LINK BETWEEN VOLUNTARY AND NON-VOLUNTARY EUTHANASIA Camb. Law J. (IF 1.909) Pub Date : 2022-02-09 John Keown
The logical “slippery slope” argument is of key relevance to the ongoing debate about “assisted dying”. The argument runs that if the principle of respect for autonomy and the principle of beneficence justify voluntary euthanasia, then the principle of beneficence justifies non-voluntary euthanasia. Several prominent scholars of medical law and medical ethics have either rejected or at least not accepted
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REMARKS ON TECHNOLOGICAL NEUTRALITY IN COPYRIGHT LAW AS A SUBJECT MATTER PROBLEM: LESSONS FROM CANADA Camb. Law J. (IF 1.909) Pub Date : 2022-02-09 Abraham Drassinower
The paper argues that the principle of technological neutrality in copyright law is best grasped, not as a policy-driven imperative seeking to adapt copyright law to the exigencies of the digital environment, but rather as a principle immanent in the modern concept of copyright subject matter providing that merely technical or non-expressive uses of works of authorship do not attract liability. Technological
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THE TENSION BETWEEN THE REAL AND THE PAPER DEAL CONCERNING “NO ORAL MODIFICATION” CLAUSES Camb. Law J. (IF 1.909) Pub Date : 2022-01-12 Elad Finkelstein, Shahar Lifshitz
This article proposes a new model for the regulation of no oral modification (NOM) clauses. First, the article seeks to offer a deeper understanding of the wishes of the parties in contracts from the perspective of parties' autonomy, distinguishing between intentions focused on the legal relationships and those focused on extra-contractual relations. Second, we explain how enforcement of NOM clauses
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UP THE HILL AND DOWN AGAIN: CONSTRAINING DUAL-CLASS SHARES Camb. Law J. (IF 1.909) Pub Date : 2022-01-12 Bobby V. Reddy
The headline recommendation of Jonathan Hill's 2021 UK Listing Review was that dual-class shares structures be permitted on the London Stock Exchange's premium tier. The aspiration was to encourage more high-quality UK equity listings, particularly of high-growth tech-companies, for which dual-class shares are especially beneficial. Dual-class shares allow founders to list their companies, and retain
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THE CORPORATE GROUP: SYSTEM, DESIGN AND RESPONSIBILITY Camb. Law J. (IF 1.909) Pub Date : 2022-01-12 Christian Witting
Lungowe v Vedanta Resources plc presages more liberal criteria for determining when a parent company owes a duty of care to third parties injured by subsidiary activities. It invokes systems language and points to potential parent company liability for omissions in managing the group. This article develops these ideas. It portrays the corporate group in systems-managerial terms. The parent creates
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NO ORAL MODIFICATION CLAUSES: AUTONOMY, CERTAINTY OR PRESUMPTION? Camb. Law J. (IF 1.909) Pub Date : 2021-11-01 Kwan Ho Lau
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A KHAN OF WORMS: THE SCOPE OF MEDICAL ADVICE Camb. Law J. (IF 1.909) Pub Date : 2021-11-01 C.P. McGrath
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Law and Love in Ovid: Courting Justice in the Age of Augustus. By Ioannis Ziogas. [Oxford University Press, 2021. xii + 420 pp. Hardback £90.00. ISBN 978-0-198-84514-0.] Camb. Law J. (IF 1.909) Pub Date : 2021-11-01 Maksymilian Del Mar
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The Evolution from Strict Liability to Fault in the Law of Torts. By Anthony Gray [Oxford: Hart Publishing, 2021. 278 pp. Hardback £85.00. ISBN 978-1-50994-099-8.] Camb. Law J. (IF 1.909) Pub Date : 2021-11-01 Allan Beever
out several research batons with the express intention that early career researchers should now grasp and run with them, but it also shakes up orthodoxy in suggesting that we would do well to jettison (1) our conceptualising those things that count as “a cause” in but-for terms (pp. 81–82) and (2) the novus actus interveniens concept (pp. 92–95). On these bases alone – although many others could be
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