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Table of Contents for The Modern Law Review. List of articles from both the latest and EarlyView issues.
Updated: 5 hours 46 min ago

Consent, Legitimation, and Dysphoria

Wed, 2019-10-30 15:40
Abstract

Ideals of consent and consensuality are rapidly displacing ideals of legality as the demarcation of lawful from unlawful, legitimate from illegitimate, and good from bad.  This is a particularly pronounced trend in the areas of sexual and reproductive rights and ethics.  Consensual sex has almost completely displaced marital sex as the demarcation of not only criminal from laudatory sex but also good from bad sex.  Likewise, the consensuality of a pregnancy is increasingly the demarcation of a celebrated rather than mourned pregnancy, rather than its marital province.  This development is justly celebrated as a breakthrough in women's rights and equality, but it carries costs.  This essay develops some of the limits and perils of an over‐reliance on consent and consensuality as the primary criterion of the morality of sex and reproduction.  Consent is not always a trustworthy guide to wellbeing, for both general reasons, and reasons specific to sexual and reproductive life.

Categories: Journals

Consent, Legitimation, and Dysphoria

Wed, 2019-10-30 15:40
Abstract

Ideals of consent and consensuality are rapidly displacing ideals of legality as the demarcation of lawful from unlawful, legitimate from illegitimate, and good from bad.  This is a particularly pronounced trend in the areas of sexual and reproductive rights and ethics.  Consensual sex has almost completely displaced marital sex as the demarcation of not only criminal from laudatory sex but also good from bad sex.  Likewise, the consensuality of a pregnancy is increasingly the demarcation of a celebrated rather than mourned pregnancy, rather than its marital province.  This development is justly celebrated as a breakthrough in women's rights and equality, but it carries costs.  This essay develops some of the limits and perils of an over‐reliance on consent and consensuality as the primary criterion of the morality of sex and reproduction.  Consent is not always a trustworthy guide to wellbeing, for both general reasons, and reasons specific to sexual and reproductive life.

Categories: Journals

Taking the Complexity of Complex Systems Seriously

Wed, 2019-10-30 15:39
The Modern Law Review, EarlyView.
Categories: Journals

Taking the Complexity of Complex Systems Seriously

Wed, 2019-10-30 15:39
The Modern Law Review, EarlyView.
Categories: Journals

Tackling Voyeurism: Is The Voyeurism (Offences) Act 2019 A Wasted Opportunity?

Tue, 2019-10-29 13:15
Abstract

The Voyeurism (Offences) Act 2019 amended the Sexual Offences Act 2003 to introduce a new offence that would seek to tackle so‐called ‘upskirting’. Whilst it originated as a Private Members Bill, it was quickly taken over by the Government following a backbench blocking manoeuvre. The Act ostensibly seeks to fill a loophole that exists within the law and to protect the sexual autonomy and inherent dignity of women. Instead, I will argue, the legislation deals with a niche area and is a wasted opportunity. Parliament chose to kick the issue into the long grass, from where it will be difficult to recover, with parliamentary time likely to be scarce over the coming years.

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The Chinese Social Credit System: A Model for Other Countries?

Tue, 2019-10-29 13:15
Abstract

Many countries know financial consumer credit ratings, and recent years have also seen a proliferation of rating systems in relation to online platforms and in the ‘sharing economy’, such as eBay, Uber and Airbnb. In the view of many Western observers, however, the emerging Chinese Social Credit System indicates a paradigm shift compared to these former rating systems as it aims for a comprehensive and uniform social rating based on penalty and award mechanisms. By contrast, this article suggests that the evolving forms of the Chinese system should be seen as a specific instance of a wider phenomenon. Thus, it develops a framework that compares different rating systems by reference to their drafters, users, aims, scoring systems, application, use of algorithms, enforcement and accountability; it identifies shortcomings of both low and high interventionist rating systems; and it discusses a range of regulatory approaches and emerging issues that law makers should consider.

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Reason‐Giving in Administrative Law: Where are We and Why have the Courts not Embraced the ‘General Common Law Duty to Give Reasons’?

Tue, 2019-10-29 13:15
Abstract

This article has two aims. Firstly, it explores a body of modern challenges to administrative reason‐giving, decided in the five‐year period 2014–2018. Three main themes are drawn out: outright failures to give reasons now seem to be a rare occurrence; a number of considerations help to ensure that at least an outline of reasons is usually offered by decision‐makers; common law fairness plays a limited role in testing the adequacy of reasons. Secondly, it addresses the question of why the courts have not embraced a ‘general common law duty to give reasons.’ Four factors are discussed: doubts that introducing a general duty would add something of substance to the law; difficulties inherent in developing a general formulation of the reasons required; weaknesses in the ‘hortatory’ case for a general duty and weaker commitment on the part of judges than academics to generality as a central feature of administrative law doctrine.

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The Authority and Interpretation of Regulations

Tue, 2019-10-29 13:15
Abstract

In the past half century, governments have increasingly relied on regulations—secondary legislation issued by administrative bodies and departments—to impose obligations on private parties, multiplying the occasions for regulatory interpretation. This article develops a theory of regulatory interpretation. It argues that such a theory involves understanding the authority of regulations. Turning to the public law of the UK, US, and Australia, this article identifies an intriguing similarity; in each case, regulations have authority when they rationally and nonarbitrarily implement delegated power within the means permitted by statute. The article then argues that this account of regulatory authority justifies a common approach to interpretation in which the object of interpretation is the purpose the regulation seeks to implement, discerned from the regulation's text and accompanying explanation of its purpose, and constrained by background legal norms.

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When Women's Rights are Not Human Rights – the Non‐ Performativity of the Human Rights of Victims of Domestic Abuse within English Family Law

Tue, 2019-10-29 13:15
Abstract

A large proportion of child contact cases in England take place within a context of domestic abuse and significant risks to victims and their childrenq associated with post separation contact. The legal response has largely been inadequate and the potential impact of human rights law by the family courts has yet to be fully explored. This paper analyses an exploratory empirical research project undertaken in 2017/2018 with Women's Aid England and 72 victims of domestic abuse regarding their experiences of human rights law in the family courts. The results, theorised through the lens of performativity and against the context of international human rights law, reveal a high level of non‐ performativity with respect to the human rights of the participants. The paper concludes with recommendations and the implications the analysis holds for feminist organisations if they are to fully realise the human rights of the victims of domestic abuse.

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For the Want of Certainty: Vnuk, Juliana and Andrade and the Obligation to Insure

Tue, 2019-10-29 13:15
Abstract

In 2014, the Court of Justice of the European Union in Damijan Vnuk v Zavarovalnica Triglav extended the requirement for the owner of a motor vehicle to possess insurance cover where the vehicle is used on a road or other public place to vehicles on private land. Beyond disquiet as to this extension, there remains uncertainty at statutory and jurisprudential levels. According to Fundo de Garantia Automóvel v Juliana, immobilised vehicles stored on private land but which are capable of being driven are subject to compulsory motor vehicle insurance whereas in Andrade v Crédito Agrícola Seguros, insurance is required only where the vehicle is used as a means of transport. Andrade appears overly restrictive and may operate to defeat the protections of the Motor Vehicle Insurance Directives. Clarification is needed, through a seventh MVID or direction from the CJEU, as to the authority of Andrade and the circumstances in which motor vehicles must be insured.

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Wiltshire Council v Cooper Estates Strategic Land Ltd: Development Plans and the Restriction of Town and Village Green Applications

Tue, 2019-10-29 13:15
Abstract

The Court of Appeal has, for the first time, considered the scheme of ‘trigger events’ introduced in the Growth and Infrastructure Act 2013 which preclude the registration of land as a town or village green (or TVG). The event in question concerned identification for potential development in a development plan document. The court was required to determine what constitutes ‘identification for potential development’ for the purposes of the statute. This note suggests that the court's interpretation of ‘identification for potential development’ is unconvincing, and was motivated primarily by policy: to render it more difficult to register land as a TVG. It argues that the judgment constitutes a further and significant restriction on the future viability of TVG applications, rendering entire settlements liable to lose the application of TVG law.

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Mavis MacLean and John Eekelaar, After the Act: Access to Family Justice after LASPO, Oxford: Hart Publishing, 2019, 197 pp, hb £54.00.

Tue, 2019-10-29 13:15
The Modern Law Review, Volume 82, Issue 6, Page 1176-1179, November 2019.
Categories: Journals

Andreas von Hirsch, Deserved Criminal Sentences: An Overview, London: Bloomsbury, 2017, 165 pp, hb £50.00.

Tue, 2019-10-29 13:15
The Modern Law Review, Volume 82, Issue 6, Page 1184-1187, November 2019.
Categories: Journals

Candice Delmas, A Duty to Resist: When Disobedience Should Be Uncivil, Oxford: Oxford University Press, 2018, 312 pp, hb £19.99.

Tue, 2019-10-29 13:15
The Modern Law Review, Volume 82, Issue 6, Page 1187-1192, November 2019.
Categories: Journals

Enrico Bonadio and Nicola Lucchi, Non‐Conventional Copyright, Cheltenham: Edward Elgar Publishing, 2018, 520 pp, hb £130.00.

Tue, 2019-10-29 13:15
The Modern Law Review, Volume 82, Issue 6, Page 1192-1197, November 2019.
Categories: Journals

James Meese, Authors, Users, and Pirates: Copyright Law and Subjectivity, Cambridge, Mass: MIT Press, 2018, 240 pp, hb $35.00/£27.00.

Tue, 2019-10-29 13:15
The Modern Law Review, Volume 82, Issue 6, Page 1197-1201, November 2019.
Categories: Journals

Mukarrum Ahmed, The Nature and Enforcement of Choice of Court Agreements – A Comparative Study, Oxford: Hart/Bloomsbury, 2017, 300 pp, hb £80.00.

Tue, 2019-10-29 13:15
The Modern Law Review, Volume 82, Issue 6, Page 1202-1204, November 2019.
Categories: Journals

Noam Gur, Legal Directives and Practical Reasons, Oxford: Oxford University Press, 2018, 256 pp, hb £50.00.

Tue, 2019-10-29 13:15
The Modern Law Review, Volume 82, Issue 6, Page 1179-1183, November 2019.
Categories: Journals

Modern Law Review Volume 82 Index

Tue, 2019-10-29 13:15
The Modern Law Review, Volume 82, Issue 6, Page i-xv, November 2019.
Categories: Journals

In Search of Foundations: Ethics and Metaethics in Constitutional Adjudication

Tue, 2019-10-29 13:15
The Modern Law Review, Volume 82, Issue 6, Page 1157-1175, November 2019.
Categories: Journals

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