The Modern Law Review

Subscribe to The Modern Law Review feed The Modern Law Review
Table of Contents for The Modern Law Review. List of articles from both the latest and EarlyView issues.
Updated: 2 months 1 week ago

‘Too Much, too Indigestible, too Fast’? The Decades of Struggle for Abortion Law Reform in Northern Ireland

Thu, 2020-04-23 20:00
Abstract

In July 2019, the UK Parliament voted by an overwhelming majority for fundamental reform of Northern Ireland's archaic abortion laws. Regulations implementing the reform came into effect on 25 March 2020. Drawing on extensive archival resources and a small number of interviews, we locate this extraordinary political moment in a broader historical context. We explore the factors that blocked the possibility of reform in either Westminster or Stormont for over five decades and consider what it was that had changed in 2019 to render it possible. While the measure passed in Westminster represents a radical rupture with the past, we suggest that it was anything other than sudden, rather representing the culmination of decades of sustained campaigning. We conclude by briefly discussing what this change is likely to mean for the future.

Categories: Journals

Durie v Gardiner: Public Libel Law and Stare Non Decisis

Wed, 2020-04-22 09:18
Abstract

This note examines the controversial case of Durie v Gardiner, a recent decision of the Court of Appeal of New Zealand, which radically altered the nation's public libel jurisprudence. It argues that Durie is incorrect as a matter of public libel law for three reasons. First, both Durie judgments failed to engage in freedom of expression theorising. Second, this undertheorising has caused significant confusion in Durie, including misinterpretation of material facts, breakdown of the ‘theory‐doctrine’ interface, and a precipitous and unwarranted dismissal of the Court of Appeal's settled public libel principles. Third, owing to these difficulties, the Durie courts were in no position to import a new ‘public interest’ defence from foreign jurisdictions. Above all, by hastening towards wholesale law reform and ignoring its earlier comparative law deliberations, Durie arguably scuppers public libel law's best hope for advancement.

Categories: Journals

Border Problems: Mapping the Third Border

Wed, 2020-04-22 09:18
Abstract

The Internet has become the site of economically relevant objects, events and actions, as well as the source of potential risks to the financial systems. This article builds on a metaphor of ‘border problems’ in financial regulation, exploring a ‘third border’ between the ‘real world’ and ‘cyberspace’—a virtual domain of human interaction facilitated and conditioned by digital communications systems. Reviewing the ‘cyber‐sovereignty’ debate and surveying the divergent approaches now emerging along geo‐political faultlines, we argue that sovereign states still have a unique and irreplaceable role in guarding financial stability which must be reflected in the law of Internet jurisdiction: an emerging lex cryptographica financiera. We conclude with a few observations on how this could affect the design of financial regulation in the coming decade.

Categories: Journals

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

Wed, 2020-04-22 09:18
Abstract

This article considers and rejects claims that 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

It Ain't Necessarily So: A Legal Realist Perspective on the Law of Agency Work

Wed, 2020-04-22 09:18
Abstract

Analysis of UK employment and labour law is often characterised by a curious dissonance. The overarching narrative mandates that labour law is a countervailing force to the inequality of bargaining power, embedded with values and assumptions concerning the nature of employment relations and the role of labour law. And yet, labour law jurisprudence tends to treat with respect, and seeks to decipher, abstract statutory concepts and tests derived from judicial pronouncements as if they were, indeed, a ‘brooding omnipresence in the sky’. This paper seeks to bridge that gap, by offering a legal realist account of the legal doctrine that governs the employment of agency workers, focusing on the ‘necessity’ and ‘sham’ tests. It assesses the legitimacy of importing legal tests from one (commercial) context to another (employment) context; questions the courts’ protestations that their use is mandated by precedent; and outlines the real implications for the status and rights of agency workers in the UK.

Categories: Journals

Critical Reflections on the Proposal for a Mediation Act for Scotland

Wed, 2020-04-22 09:18
Abstract

This article critically analyses the recent proposal to introduce a Mediation (Scotland) Bill. The proposed Bill aims to introduce a novel process of court‐initiated mediation that will oblige litigating parties to attend a mandatory Mediation Information Session. Adopting a comparative approach with the English and Irish civil justice systems, this article analyses the key elements of the proposed Bill and makes proposals to improve it.

Categories: Journals

Citizenship and Unauthorised Migration: a Dialectical Relationship

Wed, 2020-04-22 09:18
Abstract

The relationship between citizenship and immigration law is often conceived as a conceptual dichotomy in which the former functions as the rhetorical domain of inclusion while immigration law does the dirty work of detention, deportation and snooping into peoples’ lives in order to uphold the inclusive values of the internal domain. States however employ a variety of practices of immigration control that infringe citizens’ rights and produce lasting dilatory effects on citizenship itself. Focusing on two specific case studies – racial profiling in identity checks carried out for immigration purposes and the standards of interpretation developed by the European Court of Human Rights in regard to the right to family life in expulsion cases – this article argues that current practices of immigration control result in a transformation of citizenship along racialised lines, which hollows citizenship's normative core of equality and liberty.

Categories: Journals

RR v Secretary of State for Work and Pensions: Empowering Tribunals to Enforce the Human Rights Act 1998

Wed, 2020-04-22 09:18
Abstract

In RR v Secretary of State for Work and Pensions – follow‐on litigation from the high‐profile bedroom tax cases – the Supreme Court handed down a judgment which has significant implications for social security law, the interpretation of the Human Rights Act, the tribunals system, the judicial control of delegated legislation, and access to justice. Central, however, was the issue of the enforceability of human rights. We argue that the Supreme Court was not only justified in its interpretation of the Human Rights Act but that it has made the protections of the Act more easily enforceable.

Categories: Journals

Chris Reed and Andrew Murray, Rethinking the Jurisprudence of Cyberspace, Cheltenham: Edward Elgar, 2018, 256 pp, hb £72.00.

Wed, 2020-04-22 09:18
The Modern Law Review, Volume 83, Issue 3, Page 690-694, May 2020.
Categories: Journals

Jacob Öberg, Limits to EU Powers: A Case Study of EU Regulatory Criminal Law, Oxford: Hart Publishing, 2017, 256 pp, hb £70.

Wed, 2020-04-22 09:18
The Modern Law Review, Volume 83, Issue 3, Page 711-713, May 2020.
Categories: Journals

Javier Reyes, Reframing Corporate Governance: Company Law Beyond Law and Economics, Cheltenham: Edward Elgar Publishing, 2018, 256 pp, hb £72.00.

Wed, 2020-04-22 09:18
The Modern Law Review, Volume 83, Issue 3, Page 695-698, May 2020.
Categories: Journals

C. Gerner‐Beuerle and M. Schillig, Comparative Company Law, Oxford: Oxford University Press, 2019, ixx+ 1010 pp, hb £150.00.

Wed, 2020-04-22 09:18
The Modern Law Review, Volume 83, Issue 3, Page 722-724, May 2020.
Categories: Journals

Taking the Complexity of Complex Systems Seriously

Wed, 2020-04-22 09:18
The Modern Law Review, Volume 83, Issue 3, Page 661-685, May 2020.
Categories: Journals