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The Extrajudicial Voice Legal Studies (IF 1.113) Pub Date : 2024-04-03 Conall Mallory, Hélène Tyrrell
Judges communicate outside of the courtroom on a regular basis. They give speeches at universities and to societies; appear before select committees; write for a range of publications; and engage in both media and outreach activities. Existing literature has charted the value and perils of such extrajudicial communication. This paper contributes an explanation of what motivates judges towards such
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Law and scale: lessons from Northern Ireland and Brexit Legal Studies (IF 1.113) Pub Date : 2024-04-01 Sylvia de Mars, Aoife O'Donoghue
All aspects of law possess scaler elements, but critiques from the ‘politics of scale’, a concept well established in political geography, remain rare in legal analysis. Brexit, especially as regards Northern Ireland, provides a key opportunity to consider scaler analysis both in a descriptive and theoretical sense. Scale deepens our understanding of how law co-constitutes multiple scales but also
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Contesting the property paradigm amid ‘radical’ constitutional change: Living Rent and the Private Residential Tenancies (Scotland) Act 2016 Legal Studies (IF 1.113) Pub Date : 2024-03-11 Mark Jordan
This paper examines the interaction between ‘radical’ constitutional change, in the form of political devolution, and property systems in the UK, from the perspective of those at the margins of those systems. The paper adopts a property ‘from below’ approach and critically applies the theoretical framework developed by AJ van der Walt in Property in the Margins. In that book, van der Walt outlined
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Informing a sociological jurisprudence of mutual trust and confidence Legal Studies (IF 1.113) Pub Date : 2024-03-11 Emily Rose
The aim of this paper is to inform a sociological jurisprudence of the implied duty in the contract of employment of mutual trust and confidence. Present analyses of the emerging term have been doctrinal in nature. Such scholarship contributes a normative internal perspective to what can be understood as the jurisprudential project of guarding and maintaining law as a practice of regulation. This paper
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Analysing legal responses to coerced debt Legal Studies (IF 1.113) Pub Date : 2024-02-15 Ellen Gordon-Bouvier
This paper analyses legal responses to the problem of debt taken out due to coercion within an intimate relationship. Coerced debt differs from other forms of domestic abuse, as it involves a contractual relationship between the victim and a third-party lender. Legal responses must consider whether the victim should be released from her contractual obligation. The paper employs a theoretical lens of
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Statutory interpretation and the administrative state: refocusing the purposivist/intentionalist debate Legal Studies (IF 1.113) Pub Date : 2024-02-08 Tim Sayer
Questions of statutory interpretation form a significant portion of administrative law cases. Accordingly, judicial methodology in this area requires careful consideration by public law commentators. The core aim of this paper is to question the general orthodoxy that statutory interpretation is invariably a question for judges. In recent times, one prominent argument has been that between jurists
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What does Covid-19 teach us about English contract law? Legal Studies (IF 1.113) Pub Date : 2024-02-08 Catherine Mitchell
This paper examines how English courts have responded to the contract problems generated by the Covid-19 pandemic and considers what this tells us about future contract law development. In relation to consumers, the case law on pandemic-affected contracts, though limited, indicates that traditional contract doctrine does not necessarily produce beneficial outcomes for consumers. This further diminishes
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Revisiting the punitiveness of deportation Legal Studies (IF 1.113) Pub Date : 2024-01-09 Amanda Spalding
Immigration measures such as deportation are currently not regarded as punitive and there has been little exploration of this from a legal perspective. This paper will consider this issue in depth, covering little discussed case law from the European Court of Human Rights. It will also explore how this legal position on deportation does not reflect the findings of other disciplines such as criminology
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‘State threats’, security, and democracy: the National Security Act 2023 Legal Studies (IF 1.113) Pub Date : 2023-12-12 Paul F Scott
The National Security Act 2023 replaces the Official Secrets Acts 1911, 1920 and 1939, updating, rationalising, and expanding the various offences which they contained and introducing new rules aimed at the same broad end of countering the threat posed to the UK by the efforts of hostile states and their proxies. It therefore represents a legislative confirmation of the ongoing pivot back to ‘state
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Executive compensation: investor preferences during say-on-pay votes and the role of proxy voting advisers Legal Studies (IF 1.113) Pub Date : 2023-11-23 Suren Gomtsian
Shareholder say-on-pay voting allows institutional investors to influence the incentives of managers and, consequently, corporate behaviour. Surprisingly, the preferences of investors on executive compensation have been largely overlooked in the ongoing debates on the role of say-on-pay in corporate governance and the impact of shareholder stewardship on sustainable corporate behaviour. The analysis
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Legal research and the public good: the current landscape Legal Studies (IF 1.113) Pub Date : 2023-11-13 Joanne Conaghan
This paper is a revised version of a plenary lecture delivered at the SLS Annual Conference held at Oxford Brookes University in June 2023. It adopts an auto-ethnographic approach, drawing on the author's long experience of participating in the UK Research Excellence Framework (REF), to assess the current state of legal research in the UK and consider the implications of the increasing importance in
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Food, dignity, and the European Court of Human Rights Legal Studies (IF 1.113) Pub Date : 2023-10-18 Clare James
Austerity measures and the cost-of-living crisis have led to rising poverty rates and violations of socioeconomic rights in the UK and Europe. However, there are limited routes of redress for these violations in many European countries. Claims using Article 3 of the European Convention on Human Rights (ECHR) to address violations of socioeconomic rights are suggested but not fully described in the
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The imperfect legitimacy of judicial umpires in European multilevel democracies Legal Studies (IF 1.113) Pub Date : 2023-10-18 Pablo Castillo-Ortiz
Judicial institutions have become the standard solution to umpire multilevel polities across much of the European continent. However, such arrangement is not free from complexities. This paper analyses the problems associated with the construction of legitimacy regarding constitutional courts in European multilevel democracies. In these polities, constitutional courts tend to rely on three different
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The law and ethics of a property rights approach to frozen embryo disputes Legal Studies (IF 1.113) Pub Date : 2023-10-18 Mollie Cornell, Teresa Baron
Disputes over frozen embryos represent a particularly problematic case, legally and ethically, due to the ambiguity of their moral and legal status and the potential rights-claims which can be made with regard to them. Recent work has contextualised frozen embryos as liminal and suggested a contextual approach to their legal classification. By appeal to personal property law, with a lens provided by
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Sexual diversity and the Nationality and Borders Act 2022 Legal Studies (IF 1.113) Pub Date : 2023-10-18 Alex Powell, Raawiyah Rifath
In this short piece we focus on two of the main changes brought in by the recent Nationality and Borders Act 2022 with a focus on sexually diverse claimants: inadmissibility and the increased standard of proof. The recent changes have a negative impact on all asylum seekers but we highlight that they have a particularly adverse impact on sexually diverse claimants because their diverse backgrounds
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Delegated legislation in the pandemic: further limits of a constitutional bargain revealed Legal Studies (IF 1.113) Pub Date : 2023-10-05 Daniella Lock, Fiona de Londras, Pablo Grez Hidalgo
The challenge that delegated legislation poses to parliamentary sovereignty and associated supremacy in the UK is purportedly addressed through what we term the ‘constitutional bargain of delegated law-making’. This has three elements: the proper limitation of delegation by Parliament through well-designed parent legislation; the exercise of self-restraint by the Executive in the use of delegated authority;
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The Attorney General and contempt of court – some political and constitutional concerns Legal Studies (IF 1.113) Pub Date : 2023-09-07 John McGarry
The Attorney General for England and Wales is the Government's Senior Law Officer who, inter alia, initiates certain kinds of legal proceedings. She is also a politician: a member of the House of Commons or the House of Lords and appointed to Government by the Prime Minister. This paper considers the Attorney General's role in initiating contempt proceedings against fellow politicians. I detail a number
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The interpretation of policies in administrative law: the significance of audience Legal Studies (IF 1.113) Pub Date : 2023-09-07 Alistair Mills
The interpretation of administrative policies is of great importance in contemporary public law. The correct approach to policy interpretation has, however, been subject to insufficient academic scrutiny. The effect of policies is to provide guidance: not only to decision-makers, but also to stakeholders in the decision. Obvious stakeholders include the applicant or the individual who is the subject
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Legal sex status: the attitudes of non-binary people towards reform in England and Wales Legal Studies (IF 1.113) Pub Date : 2023-09-07 Mollie Gascoigne
The merits and means of accommodating non-binary populations into UK law is becoming an increasingly important issue for policymakers, judges, scholars and legal professionals. Following Elan-Cane's Supreme Court challenge to binary passport sex markers in 2021, the UK Government face another challenge this year concerning non-binary recognition on birth certificates. While an additional third sex
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Trans (legal) parenthood and the gender of legal parenthood Legal Studies (IF 1.113) Pub Date : 2023-09-07 Alan Brown
Trans identities are increasingly subjected to contentious public and political debate in the UK, and this has resulted in resource to the law across various contexts. Against that background, this paper considers trans legal parenthood after the decision in R (McConnell and YY) v Registrar General for England and Wales. This judgment held that a trans man who gave birth was the legal ‘mother’ of his
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The importance of ‘acting yourself into new ways of thinking’: preliminary findings on the impact of embedding workplace experiences in law degrees to positively impact student skills growth, degree results and employment outcomes before and during a global pandemic Legal Studies (IF 1.113) Pub Date : 2023-07-03 Christina Perry, Nigel Spencer
The paper reports the findings of over a decade of pioneering, award-winning fieldwork which has explored how workplace experience, if embedded successfully in different stages of legal education, can accelerate the ‘speed to capability’ and skills development of early career lawyers. The benefits from initial experiments of graduate-level work placements carried out by the authors since 2008 are presented
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Access to justice and the role of parliamentarians: what happens to those who fall through the justice gap? Legal Studies (IF 1.113) Pub Date : 2023-06-07 Daniel Newman, Jon Robins
This is the first academic paper to consider the role that parliamentarians play in access to justice. Under austerity, England and Wales has seen cuts to legal aid and local authority budgets that have impacted the ability of people to get help for legal problems in social welfare law from the advice sector. Members of the UK Parliament and Members of the Senedd Cymru are increasingly being called
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Opening Pandora's box? Capturing the edifice of ‘hopefulness’ in the private rented sector Legal Studies (IF 1.113) Pub Date : 2023-06-07 Tola Amodu
It is estimated that there are in excess of eight million unfit homes in England and that one in five excess deaths are attributable to poor housing conditions, costing the NHS some £1.4bn per year. While the policy focus tends to be on housing supply, it is the private rented sector (PRS) that is a key vehicle for provision. The pandemic has given rise to some unexpected outcomes, not least in regulating
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The UK Pay Transparency Regulations: apparent transparency without accountability? Legal Studies (IF 1.113) Pub Date : 2023-05-26 Sara Benedi Lahuerta, Peter Rejchrt, Alex Patrick
The UK enacted its first legal measure to address gender pay inequity, the Equal Pay Act 1970, more than 50 years ago. Yet, in 2021, the gender pay gap (GPG) still stood at 15.4%. Departing from the remedial and individual approach that characterises equal pay legislation, the 2017 Gender Pay Gap Information Regulations (the Regulations) require private and voluntary sector organisations with 250+
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Missing in action? Mortgage enforcement under section 126 of the Consumer Credit Act 1974 Legal Studies (IF 1.113) Pub Date : 2023-05-11 Lisa Whitehouse, Cecily Crampin
This paper sets out the true ambit of section 126 of the Consumer Credit Act 1974, noting that it requires virtually all residential mortgage agreements to be enforced by court order. Despite this, numerous commentaries on the English law of mortgage omit reference to section 126. The implications of our findings are profound. Not least, many accounts of the law of mortgage will require substantial
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Extra-territoriality and the UK Insolvency Act 1986 Legal Studies (IF 1.113) Pub Date : 2023-05-08 Gerard McCormack
This paper considers whether UK corporate insolvency law and the UK Insolvency Act 1986 have extra-territorial effect post-Brexit, and whether – and to what extent – it is for the courts or the legislature to extend any extra-territorial effect. It does not deal with ‘inward recognition’, ie the recognition of foreign judgments and orders in the UK. Brexit has left something of a vacuum and provisions
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The prohibition of forced or compulsory labour and conditional welfare under the United Kingdom's Universal Credit Scheme Legal Studies (IF 1.113) Pub Date : 2023-04-27 Ahmed Almutawa, Bashayer Almajed
To address the issue of persistent unemployment, the UK Government implemented a conditional welfare scheme. Prompted by Mantouvalou's argument that the scheme forces people into exploitative work, this paper addresses the ‘pressing’ question of whether the scheme is compatible with the prohibition on ‘forced or compulsory labour’ under Article 4(2) of the European Convention on Human Rights. It is
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Disputing death: brain death in the courts Legal Studies (IF 1.113) Pub Date : 2023-04-20 Mary Donnelly, Barry Lyons
Death by neurological criteria (DNC) has remained controversial since its introduction over 50 years ago. Objections to the diagnosis of DNC have been coming before the courts in various jurisdictions, including at least seven recent challenges before the UK courts. In responding to these challenges, the UK courts have expressed no doubts as to the status of DNC and have affirmed that following a diagnosis
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Incapacitous patients, assisted reproductive technology, and the importance of informed consent Legal Studies (IF 1.113) Pub Date : 2023-04-20 Lisa Cherkassky
The principle of self-determination has gained significant judicial support over the last three decades, and the choice to procreate using assisted reproductive technology is a clear example of our right to choose a treatment that enhances our personal lives. The Human Fertilisation and Embryology Act 1990 (as amended in 2008) stipulates that each party must give written, informed consent to ensure
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Policing, citizenship and the civil courts: how increased settlement of civil claims has impacted police accountability Legal Studies (IF 1.113) Pub Date : 2023-04-20 Clare Torrible
It is recognised that civil litigation has a place within the police accountability infrastructure. However, the role of actions against the police for wrongful arrest, false imprisonment, assault, and malicious prosecution (hereafter police actions) is underexplored. Taking citizenship as its analytical frame, this paper probes the relationship between police actions and the police complaints and
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Where the wild things are: the challenges and opportunities of the unregulated legal services landscape in family law Legal Studies (IF 1.113) Pub Date : 2023-03-29 Leanne Smith, Emma Hitchings
This paper connects two trends in contemporary legal scholarship that do not often intersect, namely commentary on the increasingly diverse nature of family law advice and support services, and calls for a refresh of the regulatory environment in which legal services in general are provided. Focusing on the law and landscape in England and Wales, we argue that regulatory challenges are particularly
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Comparative law outside the ivory tower: an interdisciplinary perspective Legal Studies (IF 1.113) Pub Date : 2023-03-03 Paulina E Wilson
Whereas legal comparisons tend to be concerned with legal systems, structures or rules, this paper focuses on a more fundamental element of law: a legal concept. From the semiotic point of view, a concept is an element of the tripartite construct of meaning, which – in the legal context – is derived from a particular legal system. Since effective communication in legal practice is predicated on the
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Re-examining judicial review of delegated legislation Legal Studies (IF 1.113) Pub Date : 2023-02-27 Kenny Chng
The usage of delegated legislation as a means of governance deserves significant attention, in view of the enormous impact that it is capable of having on the lives of citizens. While reforms to the process of parliamentary scrutiny are an important means of minimising the inappropriate usage of delegated legislation, this paper explores the possibility of drawing more fruitfully upon judicial review
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Causation or correlation: the chimera in section 11 of the Insurance Act 2015 Legal Studies (IF 1.113) Pub Date : 2023-02-20 Meixian Song
Prior to the Insurance Act 2015, an insurer could refuse payment by relying on terms unrelated to the manner in which the loss occurred, or with the assured's default. Section 11 of the Insurance Act 2015 reverses that and requires ‘the punishment to fit the crime’ by introducing a ‘could have increased the risk’ test, which is said to be a requirement for correlation between an assured's non-compliance
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Abandoning individual enforcement? Interrogating the enforcement of age discrimination law Legal Studies (IF 1.113) Pub Date : 2023-02-15 Alysia Blackham
Discrimination law primarily relies on individual enforcement for addressing discrimination at work; yet those who are most impacted by discrimination are likely the least able to enforce their rights. The question then becomes: what role should individual enforcement play in discrimination law? Can we effectively abandon individual enforcement as part of the legislative model? Drawing on a mixed method
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Conversations with friends: ‘friends of the Court’ interventions of the state parties to the European Convention on Human Rights Legal Studies (IF 1.113) Pub Date : 2023-02-15 Kanstantsin Dzehtsiarou
The European Convention on Human Rights allows its Contracting Parties to submit third-party interventions. This paper analyses the reasons for engagement of the states with the European Court of Human Rights beyond what they are strictly expected to do: respond in contentious cases and execute judgments. It is argued here that the states mainly engage with the Court for the purposes of self-interest
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Legal dispositionism and artificially-intelligent attributions Legal Studies (IF 1.113) Pub Date : 2023-02-15 Jerrold Soh
It is conventionally argued that because an artificially-intelligent (AI) system acts autonomously, its makers cannot easily be held liable should the system's actions harm. Since the system cannot be liable on its own account either, existing laws expose victims to accountability gaps and need to be reformed. Recent legal instruments have nonetheless established obligations against AI developers and
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Local, democratic community justice in the Mental Health Act 1983 Legal Studies (IF 1.113) Pub Date : 2023-02-15 Thomas E Webb
Associate Hospital Managers (AHMs) are members of the local community with a power under section 23 of the Mental Health Act 1983 to discharge people from compulsory mental health care against medical advice. They provide scrutiny of professional decisions and, in so doing, protect patient liberty by providing review of compulsory care. Abolition of the AHMs has been contemplated on numerous occasions
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Planning, discretion and the legacy of onshore wind Legal Studies (IF 1.113) Pub Date : 2023-02-02 Colin Mackie
This paper evaluates the wide discretion afforded to planning decision-makers in England. It does so in respect of a key but often overlooked question in the transition to renewables: whether developers/owners of onshore wind projects should be required to provide a ‘bond’ to ensure decommissioning and site restoration (DSR) occurs. Bonds are financial instruments that evidence ability to fund DSR
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Bridging the accountability gap of artificial intelligence – what can be learned from Roman law? Legal Studies (IF 1.113) Pub Date : 2023-01-18 Klaus Heine, Alberto Quintavalla
This paper discusses the accountability gap problem posed by artificial intelligence. After sketching out the accountability gap problem we turn to ancient Roman law and scrutinise how slave-run businesses dealt with the accountability gap through an indirect agency of slaves. Our analysis shows that Roman law developed a heterogeneous framework in which multiple legal remedies coexist to accommodate
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The nature of property in cryptoassets Legal Studies (IF 1.113) Pub Date : 2023-01-18 Timothy Chan
Disputes relating to cryptoassets have proliferated in recent years, along with the rise of the cryptoasset market. Some of these can be resolved using traditional principles of contract, tort or trust law, but proprietary issues raise particular conundrums. While cryptoassets have generally been accepted to be property, that is merely the starting point. To properly resolve proprietary disputes, it
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Between nation and empire: how the state matters in global health Legal Studies (IF 1.113) Pub Date : 2023-01-10 John Harrington
The role of the state has been underplayed in scholarship on global health. Taking a historical view, this paper argues that state institutions, practices and ideologies have in fact been crucial to the realisation of contemporary global health governance and to its predecessor regimes. Drawing on state theory, work on governmentality, and Third World approaches to international law, it traces the
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Fixing the misalignment of the concession of corporate legal personality Legal Studies (IF 1.113) Pub Date : 2023-01-10 Jonathan Hardman
The nature of separate legal personality is a perennial debate in corporate law. This paper uses insights from a previous iteration of the debate to argue that separate legal personality is best seen as a two-step process: it is a concession from the state to something real. That real thing is the economic concept of the firm, which has been recently debated within institutional economics. Viewing
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Professional identity, legitimacy and managerialism at the Crown Prosecution Service Legal Studies (IF 1.113) Pub Date : 2023-01-10 Laurène Soubise
Tasked with enforcing criminal law, public prosecutors worldwide enjoy broad discretion. Existing literature on prosecutorial discretion and accountability tends to discuss the regulation of prosecutorial discretion or analyse the influence of the procedural environment in which public prosecutors operate. This paper focuses on occupational culture as an important factor affecting prosecutorial decisions
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Pharmaceutical patent law and policy in Africa: a survey of selected SADC member states Legal Studies (IF 1.113) Pub Date : 2023-01-09 Bryan Mercurio, Tolulope Anthony Adekola, Chimdessa Fekadu Tsega
The paper surveys the intellectual property (IP) laws of seven Southern African Development Community countries to better understand the nature, scope, and depth of their patent laws with particular focus on their utilisation of TRIPS flexibilities to facilitate pharmaceutical access. The selected countries – Botswana, Malawi, Namibia, South Africa, Tanzania, Zambia, and Zimbabwe – represent a mix
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Embedding alternative dispute resolution in the civil justice system: a taxonomy for ADR referrals and a digital pathway to increase the uptake of ADR Legal Studies (IF 1.113) Pub Date : 2022-12-15 Pablo Cortés
This paper examines in three parts how ADR is being embedded into the English civil justice system. Section 1 discusses how courts encourage settlements, and it argues that while mounting costs in litigation lead to negotiated settlements, the participation in ADR primarily mainly occurs when parties are referred to it in a timely manner. Section 2 investigates the time when disputants are referred
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Statutory interpretation after Brexit: implications from a case study of VAT Legal Studies (IF 1.113) Pub Date : 2022-12-01 Yige Zu
As the UK left the European Union, a new body of UK law, labelled ‘retained EU law’, was introduced to save and convert certain parts of EU law into UK statutes. This paper explores the impact of Brexit on statutory interpretation in the UK in the context of VAT. In particular, it looks at whether, and the manner in which, UK courts and the Court of Justice of the European Union (CJEU) will move in
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Investigating the English public's awareness of the Bern Convention and their education on environmental issues and laws Legal Studies (IF 1.113) Pub Date : 2022-11-24 Rachel Dunn, Tanya Wyatt, Luke Johnson, Callam Willis, Hannah Millar
This paper investigates the knowledge of the general public on the legislative framework relating to wildlife conservation in England, with a specific focus on the Bern Convention and the public's awareness of the treaty, as well as the domestic legislation transposing it. By creating a publicly available survey, the study determined the environmental attitudes of the public and their knowledge of
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‘Climate Change isn't Optional’: Climate Change in the Core Law Curriculum Legal Studies (IF 1.113) Pub Date : 2022-11-03 Kim Bouwer, Evan John, Oliver Luke, Amanda Rozhan
This paper makes a case for the integration of compulsory climate change topics across the core law curriculum. It argues that the most persuasive rationale for this is based in climate legal obligations and institutions, and a clear-eyed perception of climate risk, rather than the sustainability agenda. To this end, the paper outlines efforts taken to ‘mainstream’ climate change and environmental
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The vicarious liability of sports governing bodies and competition organisers Legal Studies (IF 1.113) Pub Date : 2022-10-21 James Brown
This is the first work to explore the possibility of holding sports governing bodies and competition organisers vicariously liable for the tortious behaviour of athletes that compete under their auspices. In contrast to other scholarly contributions on vicarious liability in sport, this paper examines the scope of responsibility for athletes in individual sports (as opposed to team sports). It begins
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‘Mediators mediating themselves’: tensions within the family mediator profession Legal Studies (IF 1.113) Pub Date : 2022-08-26 Rachael Blakey
The demand for family mediation to adapt and change has risen sharply in the contemporary English and Welsh family justice system. This paper focuses on a crucial, yet overlooked, barrier to reform: the tensions felt within the family mediator profession. It first provides an important overview of the introduction of family mediation in the late twentieth century, highlighting the distinction between
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Involuntariness in negligence actions Legal Studies (IF 1.113) Pub Date : 2022-08-24 Stephen Bogle
In a negligence action against a defendant suffering from a mental disorder or an incapacity, a key but neglected question is what we mean by involuntariness. Although involuntariness is an accepted response, its relationship to mental or physical incapacity is poorly understood. The existing authorities offer only basic instruction about what is meant by involuntariness. Moreover, there is a suspicion
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Vaccination, conscientious objection and human rights Legal Studies (IF 1.113) Pub Date : 2022-08-24 Ian Leigh
This paper discusses the extent to which conscientious objections to vaccination qualify for protection under the European Convention on Human Rights (ECHR). Drawing on an examination of the nature of conscience and the ethics of vaccine refusal, it argues that a narrow category of reasons for refusal to be vaccinated can be differentiated from more general ‘vaccine hesitancy’. In relation to conscience
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Discretion to exclude improperly obtained evidence in civil proceedings in England and Wales Legal Studies (IF 1.113) Pub Date : 2022-08-05 Alexandra Allen-Franks
Exclusion of improperly obtained evidence is often discussed in relation to criminal proceedings, but not civil proceedings, where concerns about wrongdoing of state actors and deprivation of liberty are not usually present. It is sometimes assumed that judges in civil proceedings in England and Wales had no discretion to exclude relevant and reliable evidence based on how it was obtained (as a distinct
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Parliamentary sovereignty and the protocol pincer Legal Studies (IF 1.113) Pub Date : 2022-08-05 Anurag Deb
It is May 2030 and Stormont heads into its fourth Assembly election in eight years. Voters walk past election posters loudly praising and denouncing the Northern Ireland Protocol. As with the other Assembly elections since Brexit, the Protocol occupies centre-stage. Voters are under no delusion: the new Assembly will be as polarised as ever, no matter its party-political make-up. The legal backdrop
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The incoherent role of the child's identity in the construction and allocation of legal parenthood Legal Studies (IF 1.113) Pub Date : 2022-07-20 Alan Brown, Katherine Wade
This paper explores the relationship between the concept of the ‘identity of the child’ and legal parenthood. It examines the role of identity in the determination of legal parenthood in three contexts: (a) parental orders after surrogacy arrangements; (b) disputed paternity cases; and (c) the statutory rules in cases involving gamete donation. This paper argues that the concept of ‘identity’ plays
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‘Well, the burden never shifts, but it does’: celebrity, property offences and judicial innovation in Woolmington v DPP Legal Studies (IF 1.113) Pub Date : 2022-07-20 K Crosby
In his 1935 judgment in Woolmington v DPP, Viscount Sankey declared the prosecution's burden of proving the accused's guilt was a ‘golden thread’, running ‘throughout the whole web of English criminal law’. This paper explores what Woolmington can tell us about the appeals process – and about the criminal law itself – less than 30 years after the first automatic right to appeal was created in English
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The ‘human element’ in the social space of the courtroom: framing and shaping the deliberative process in mental capacity law Legal Studies (IF 1.113) Pub Date : 2022-05-24 Camillia Kong, Rebecca Stickler, Penny Cooper, Matthew Watkins, Michael Dunn
The context- and person-specific nature of the Mental Capacity Act 2005 (MCA) in England and Wales means inherent indeterminacy characterises decision-making in the Court of Protection (CoP), not least regarding conflicting values and the weight that should be accorded to competing factors. This paper explores how legal professionals frame and influence the MCA's deliberative and adjudicative processes
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Practical obstacles and structural legal constraints in the adoption of ‘defensive’ policies: comparing the EU Carbon Border Adjustment Mechanism and the US Proposal for a Border Carbon Adjustment Legal Studies (IF 1.113) Pub Date : 2022-05-10 Giulia Claudia Leonelli
This paper analyses the EU proposal for a carbon border adjustment mechanism (CBAM) and a recent US proposal for the establishment of a border carbon adjustment (BCA) as examples of ‘defensive’ policies, broadly informed by an economic level playing field and an environmental level playing field rationale. From an environmental law perspective, the CBAM's narrow focus on price-based policies, distortions
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Structuring prosecutorial power Legal Studies (IF 1.113) Pub Date : 2022-04-08 Carla Sepulveda, Javier Wilenmann
Prosecutors play a decisive role in contemporary criminal justice. Their decisions greatly influence the output of the system, as well as the behaviour of other criminal justice institutions. By harnessing the power to filter, select and segment the work of criminal justice, prosecutors provide structure to an otherwise unbalanced field. They thus play a key structuring role. However, the prosecutors’