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Table of Contents for The Modern Law Review. List of articles from both the latest and EarlyView issues.
Updated: 15 min 37 sec ago

Durie v Gardiner: Public Libel Law and Stare Non Decisis

Fri, 2020-03-27 09:19
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.

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The Managerial Ombudsman

Fri, 2020-03-27 09:19
Abstract

This article identifies a major development in the role and practice of the ombudsman. It argues that the New Public Management practices that have transformed public administration in the last 30 years have led to a more managerial approach to the ombudsman's work. The article's argument is developed through analysis of an empirical case study of the Scottish Public Services Ombudsman, which illustrates how the aims and techniques of managerialism have been deployed in the ombudsman context. The article evaluates the significance of these developments for the ombudsman institution and for the wider justice system. It examines the risks and opportunities inherent in this turn to managerialism and whether it represents a departure from the ombudsman's mission or a necessary adaptation to a changed world of public administration. In identifying the rise of the ‘managerial ombudsman’, the article provides a new framework for conceptualising developments in the modern ombudsman institution.

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Where the Action Is: Macro and Micro Justice in Contract Law

Fri, 2020-03-27 09:19
Abstract

In contemporary private law theory the relationship between ‘macro’ theories of distributive justice and the ‘micro’ site of interpersonal transactions remains under‐explored. In this paper, I draw on the ‘macro’ theory of justice articulated by John Rawls and offer an account of ‘micro contractual justice’ that helps us understand how the micro domains of contracting introduce particular relational constraints on the infusion of distributive considerations into contract law, resulting in constrained conception of ‘relational Rawlsianism’ operating in contractual domains. My framework provides a bridge between the macro and micro, helping us understand how they are in various senses separate yet interlocking, and also provides a ‘third way’ between all or nothing positions on the place of distributive justice in contract.

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The Evolution of EU Antitrust Policy: 1966–2017

Fri, 2020-03-27 09:19
Abstract

This article describes, and puts in context, the evolution of the enforcement practice of the European Commission in the area of EU antitrust law (Articles 101 and 102 TFEU). It considers all formal decisions adopted in the period between 1966 – when the European Court of Justice delivered the two seminal rulings that marked the discipline – and the end of 2017. The article classifies Commission decisions in accordance with four enforcement paradigms. The descriptive statistics show that the cases that the Commission chooses to prioritise have changed over the years. First, enforcement has progressively moved towards the core and the outer boundaries of the system. Second, it has become policy‐driven rather than law‐driven. Third, the nature of the cases chosen by the Commission is consistent with its commitment to a ‘more economics‐based approach’ to enforcement. Finally, these cases signal a move towards a more ambitious stage in the process of the integration of Member States’ economies.

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Unpopular Sovereignty?

Wed, 2020-03-25 07:13
Abstract

Popular sovereignty was presented in modern constitutional discourse as a mode of collective action. It was supposedly manifest in the power to constitute, control and dismantle governments. Important strands of contemporary constitutional theory, notably legal constitutionalism and deliberative democracy, have taken leave of this tradition. They have severed the connection between sovereignty and action. What remains of popular sovereignty is fundamental rights and values, or dispersed networks of deliberation. This is based on the the idea that the place of power is ‘empty’ and legitimised on the principle of including ‘All‐Affected‐Interests’. The very concept of sovereignty thus becomes unpopular. This contribution aims to re‐establish the link between popular sovereignty and action by examining sovereignty's emancipatory telos, its majoritarian mode of operation and its dependence on political citizenship.

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Citizenship and Unauthorised Migration: a Dialectical Relationship

Wed, 2020-03-25 07:13
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.

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

Wed, 2020-03-25 07:13
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.

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Gender and the Analytical Jurisprudential Mind

Wed, 2020-03-25 07:13
The Modern Law Review, EarlyView.
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The Romantic Allure of Old Europe: Pertinent Questions and Non‐Responses

Wed, 2020-03-25 07:13
The Modern Law Review, EarlyView.
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Critical Reflections on the Proposal for a Mediation Act for Scotland

Tue, 2020-03-17 14:58
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.

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Welfare‐to‐Work, Structural Injustice and Human Rights

Tue, 2020-03-17 14:58
Abstract

This article discusses welfare‐to‐work schemes, places schemes with strict conditionality in the theoretical framework of structural injustice, and argues that they may violate human rights law. Welfare‐to‐work schemes impose obligations on individuals to seek and accept work on the basis that otherwise they will be sanctioned by losing access to social support. The schemes are often presented as the best route out of poverty. However, the system in the UK, characterised by strict conditionality, coerces the poor and disadvantaged into precarious work, and conditions of in‐work poverty. Forcing people to work in these conditions creates and sustains widespread and routine structures of exploitation. The article further argues that a framework of ‘state‐mediated structural injustice’ is the best way of explaining the wrong. It finally claims that this injustice violates principles that are enshrined in human rights law, which the authorities have an obligation to examine and address.

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

Tue, 2020-03-17 14:58
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.

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

Sun, 2020-03-15 05:54
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.

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The Problematic Development of the Stalking Protection Order

Sun, 2020-03-15 05:54
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.

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