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Table of Contents for The Modern Law Review. List of articles from both the latest and EarlyView issues.
Updated: 1 hour 49 min ago

The Romantic Allure of Old Europe: Pertinent Questions and Non‐Responses

Sun, 2020-01-19 18:59
The Modern Law Review, EarlyView.
Categories: Journals

Covenanting for Nature: A Comparative Study of the Utility and Potential of Conservation Covenants

Tue, 2020-01-14 12:11
Abstract

Conservation covenants over private land are extensively used in some jurisdictions to secure a wide range of public benefits: in some cases primarily to promote nature conservation, while elsewhere to foster conservation alongside greater public access to ‘green’ space. This article considers the use of conservation covenants in New Zealand, Scotland, and England and Wales. It argues that they can play a unique role in balancing nature conservation, property rights and increased public access to private land. It reviews proposals for new legislation in England and Wales and argues that, if it is to be successful, the potential of conservation covenants to secure greater public access to private land should be more strongly emphasised. Their successful use in New Zealand shows that, while recognising the important balancing function that they can perform, this emphasis is critically important if covenants are to fulfil their potential to ‘reconnect’ people and nature.

Categories: Journals

The Problematic Development of the Stalking Protection Order

Tue, 2020-01-14 12:10
Abstract

In 2019, Parliament enacted the Stalking Protection Act. The Act introduces the stalking protection order (SPO); a civil measure the breach of which is an offence. The role of courts in assessing whether similar behaviour orders are penalties has attracted significant scholarly attention. This article examines instead the roles of Government and Parliament in developing the stalking protection order. My central contention is that the Home Office undertook a problematic consultation and the issues to which it gave rise were not addressed in later parliamentary debates. The result was the enactment of a coercive measure of unclear purpose and questionable efficacy. Assessing the roles of the executive and legislature in developing the SPO also allows for fresh insight into wider discussions of behaviour orders. Specifically, I question the language of ‘prevention’ that is ever‐present in such discussions and describe an important development for debates on whether behaviour orders are penalties.

Categories: Journals

‘Reasonable Offers’ As a Defence to Unfair Prejudice Petitions: Prescott v Potamianos

Mon, 2020-01-13 19:28
Abstract

It is long established that a ‘reasonable offer’ for a petitioner's shares can defeat an unfair‐prejudice petition. Lord Hoffmann gave guidance about such offers in O'Neill v Phillips. Now, in Prescott v Potamianos, the Court of Appeal has set out three factors that help to determine in general whether an offer is ‘reasonable’. Those factors are: the value offered; the likelihood of implementation; and the proximity to the unfairly prejudicial conduct. The Court's guidance is useful for lawyers and their clients, as well as being broadly favourable for petitioners. But the Court emphasised that the unfair‐prejudice jurisdiction is based on fairness and so requires a considerable degree of flexibility. Such flexibility impairs the certainty that Lord Hoffmann was seeking to promote, and may create difficulties for parties making or receiving offers.

Categories: Journals

Will Gender Self‐Declaration Undermine Women's Rights and Lead to an Increase in Harms?

Sat, 2020-01-11 10:40
Abstract

This article considers and rejects claims reform of the Gender Recognition Act 2004 (GRA) to allow gender self‐declaration will undermine non‐trans women's rights and lead to an increase in harms to non‐trans women. The article argues that these claims are founded on a mistaken understanding of the proper legal relationship between the GRA and the Equality Act 2010 (EA), and that the harm claim, in any event, lacks a proper evidential basis. The article considers three legal arguments made by gender critical feminists: that sex‐based exceptions under the EA cannot be invoked against trans women with a Gender Recognition Certificate (GRC), that the appropriate legal comparator for a trans woman non GRC‐holder in a discrimination case is a non‐trans man, and that section 22 of the GRA, which protects the privacy of GRC‐holders, undermines the ability of women's organisations to regulate access to women‐only spaces.

Categories: Journals

Indeterminacy, Disagreement and the Human Rights Act: An Empirical Study of Litigation in the UK House of Lords and Supreme Court 1997–2017

Tue, 2020-01-07 12:11
Abstract

This article explores the impact of the Human Rights Act 1998 on the decision making of the House of Lords (UKHL) and the UK Supreme Court (UKSC). How does Convention rights content vary across areas of law in the UKHL/UKSC? Are some judges more likely than others to engage in Convention rights discourse? Is judicial disagreement more common in cases with higher levels of Convention rights discourse? A robust method of answering questions of this nature is developed and applied to decisions of the UKHL/UKSC, showing that the Convention rights content of decisions has varied over time and over substantive areas of law. Higher levels of human rights discourse are associated with greater levels of disagreement. A benchmarked measure of human rights content is developed to show the effect of the particular judge on the human rights content, illustrating the indeterminacy in human rights discourse and how its deployment can be contingent on judicial attitudes.

Categories: Journals